Appeal from Circuit Court, Lane County. Roland K. Rodman, Judge.
Max S. Taggart, II, Springfield, argued the cause for appellant. With him on the brief were Sanders, Lively & Wiswall.
Richard Bryson, Eugene, argued the cause for respondent. On the brief were Calkins & Calkins and Bryson & Robert.
This is an action for wrongful death. The jury returned a verdict for defendants and plaintiff appeals. The issue is whether the trial court erroneously instructed the jury on assumption of risk.
Londa Faye Sorrells drowned on August 3, 1969, in Siltcoos Lake. She had been water skiing with a group of young people, including her sister Mary, Melody Casey and defendants Michael Hanneson and Dennis Cole. The party was using a boat owned by Michael Hanneson's grandparents, the defendants George and Dorothy Nelson. A dock extended into the lake from the north shore and about twenty feet beyond the end of the dock there was anchored a small swimming float, also referred to as a dock in the testimony, about eight feet square with a diving board attached.
After water skiing for some time Londa and Melody asked to be let out of the boat and were let out onto the swimming float. Dennis Cole testified:
"Q What were the two girls doing on the dock? What were they going to do on the dock?
"A Londa said she wanted to swim for awhile.
I asked if they would all stay in the boat until we were done and we could leave. And then she said, 'Well, we will just sunbathe, then. So I let them . . . I went ahead and pulled over and they got out.
"Q But she indicated that she wanted to swim, did she?
Londa and Melody then remained on the swimming float while the rest of the party continued to ski. Mary Sorrells took a turn at skiing, then got into the boat and acted as observer or "spotter" while defendant Hanneson skied and defendant Cole operated the boat. The tow rope was approximately 75 feet long. While Hanneson was skiing Cole made two circular passes in a counter clock-wise pattern, which brought the boat and skier near the swimming float. On both passes the boat passed the float traveling from east to west. On the first pass Hanneson skied close enough to the float to spray water onto the girls as they sat on the north or shore side of the float. On the second circular pass the boat came closer to the float than on the first pass. The evidence is conflicting as to just what happened at that time. Hanneson testified that he was attempting to come in and land near the east side of the float. Mary Sorrells and Cole testified that Hanneson signaled his intention to come in. There was, ...