Crone

This is an appeal from a judgment notwithstanding the verdict entered after the jury had returned a verdict in favor of plaintiff for damages caused by the drowning of his fourteen year old son in a municipally owned swimming pool. Motions for nonsuit and an instructed verdict were regularly made by defendants.

The allegations of the pleadings before us show that the action as originally brought included the members of the city council of the City of El Cajon as defendants and sought to recover judgment against them under the provisions of section 1 of an act of the legislature approved June 13, 1923 (Stats. 1923, p. 675), which for want of a better name we will refer to as the Municipal Liability Act. No evidence was offered under this phase of the case and the action against the members of the city council was abated. Recovery against the municipality was sought under the provisions of section 2 of this act.

The evidence disclosed that for several years prior to 1930 respondent had operated a swimming pool during the summer months for the pleasure of its citizens. Small fees for its use were charged, but their total did not pay the cost of its operation. During the summer of…