Appeal by defendant from the Circuit Court of Rock Island
county; the Hon. RAY I. KLINGBIEL, Judge, presiding. Heard in
this court at the October term, 1951. Judgment reversed. Opinion
filed March 4, 1952. Rehearing denied May 7, 1952. Released for
publication May 7, 1952.
MR. PRESIDING JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
Rehearing denied May 7, 1952
Plaintiff, Marguerite Dargie, an infant, by her mother and next friend, brought this action against defendant, East End Bolders Club, a corporation, in the circuit court of Rock Island county to recover damages for injuries and burns which she sustained when her right leg became wedged between a wall and a steam radiator located in the ladies' rest room of the defendant's building.
Plaintiff's complaint, although consisting of only one Count, was predicated upon two theories of liability, one theory being the maintenance by the defendant of an attractive nuisance upon its premises and the other being negligence on the part of the defendant in failing to maintain its premises in a reasonably safe manner and condition. The complaint alleged that the defendant was the owner of a certain building and the equipment therein, which building was used, maintained and controlled by the defendant as a club for the benefit of the members thereof and the wives and children of the members; that said building consisted of a number of rooms, one of which was a ladies' rest room about five feet by eight feet in size and which was located at the west side of said building; that said rest room was equipped with a steam radiator three and one-half inches thick, twenty-five inches in width, twenty-four and one-half inches in height, located at a distance of about two and one-half inches from the west wall of the ladies' rest room; that there was a window in the west wall of said rest room twenty-six inches wide and forty-eight inches high, and that the lower edge of the window was fifty-one and one-half inches above the floor of the room and twenty-seven inches above the top of the radiator; that the building of defendant was located in a populous section of the City of Moline and numerous persons, children, vehicles, and other traffic habitually passed along the streets on the outside of said building, which streets could be readily seen from the window in the said room; that the defendant kept a covered metal refuse can about ten inches in diameter and thirteen inches in height in said rest room; that the said refuse can was so located in said rest room that it and the radiator formed steps to said window, all of which was attractive to children of tender years and amounted to an implied invitation to them to climb upon the can and radiator in order to look out of the window to see persons and vehicles and traffic moving on the adjoining streets; that when steam was turned into said radiator it became extremely hot and constituted a great danger to children; that ordinary care required that when children were in said rest room defendant should remove the refuse can from the rest room, or cover the radiator therein with a guard, or maintain an attendant in the rest room to prevent children from climbing upon said refuse can and radiator, or turn off the steam from said radiator, or close the rest room to children. The complaint then alleged that it was practicable for the defendant to have taken one or all of these precautions for the purpose of preventing children from being injured and that it was defendant's duty to do so.
The complaint then alleged that the defendant, upon the occasion in question and not regarding its duty, wrongfully, negligently and improperly failed to remove said refuse can from the rest room, failed and neglected to cover said radiator with a guard or cover, failed and neglected to maintain an attendant in and around said rest room, failed and neglected to turn off the steam from said radiator, and failed and neglected to close the rest room to children. It was then alleged that the plaintiff was a female child, born December 17, 1943; that on the 10th day of May, 1947, she was lawfully on the premises of the defendant and was entitled to use the facilities and conveniences of the defendant's building as a guest and invitee of the defendant and that while she was in the defendant's building she entered the ladies' rest room and, as a direct result of the defendant's maintenance of an attractive nuisance and its negligence as charged, plaintiff climbed upon said refuse can and then upon the radiator in order to look out of the window; that she then and there slipped off the top of the radiator and down between the radiator and wall, and her right knee and leg became wedged between the wall and hot radiator and, as a consequence, she suffered severe and permanent injuries.
The defendant by its answer admitted that the plaintiff's presence in its club rooms was lawful when accompanied by her father and mother, avers that her parents were responsible for protecting her against dangers which could only arise through her incapacity to exercise proper care and judgment for her own safety, denied that it maintained any attractive nuisance on its premises, and denied that it was guilty of any of the acts of negligence charged by the plaintiff. The answer averred that it maintained its premises in a good and safe condition; that the radiator referred to in the complaint was not defective, that its installation and location were in accordance with standard and approved practice and offered no danger other than inheres in any heating device; that it was necessary to provide in the rest room a receptacle for disposing of used papers towels and that this receptacle was of the ordinary and usual type and offered no inherent danger, and avers that if the plaintiff sustained injuries in the manner alleged in the complaint, the same were incurred because of the act of the plaintiff and were not the proximate result of any act or omission of the defendant.
The cause was tried by a jury, resulting in a verdict in favor of the plaintiff and against the defendant for $2,500. After overruling defendant's motions for a directed verdict and judgment notwithstanding the verdict, the trial court rendered judgment on the verdict, and this appeal follows.
There is no conflict in the evidence. The plaintiff is a girl scarcely three years and five months of age and approximately thirty-five inches tall at the time she was injured. The defendant operates a family club, of which the father of the plaintiff was treasurer and director and he occasionally helped tend bar. The mother of the plaintiff was a member of the auxilliary. Children of all ages under eighteen were permitted to accompany their parents to the club rooms, and the parents or small children frequently brought with them toys, cards and paper dolls. On the morning of May 10, 1947, the plaintiff, accompanied by her parents, went to the club rooms, arriving there about eleven thirty o'clock. The father went to the barroom to get a bottle of beer, while the mother sat at a table in another room. Shortly after their arrival, plaintiff told her mother she had to go to the toilet. The mother got up from the chair where she was sitting to go with her, but the child said she was going by herself and did so, and after she entered the rest room the door between it and the room where the mother was sitting swung shut. The mother seated herself at a table about two steps from the door. After being in the rest room four or five minutes the mother heard the plaintiff yell "Mommy," and the mother pushed open the door and entered the toilet room and there found the plaintiff straddling the radiator with her right leg wedged between the radiator and the wall and with her hands she was holding on to the wash basin.
The evidence further discloses that this rest room is located on the west side of the building, and the door leading to it was at the northwest corner thereof in the north wall. The lavatory, or wash basin, was on the south wall. The rest room was about five feet wide and eight feet long. On the west wall was an ordinary window twenty-six inches wide and forty-eight inches high and about fifty-one inches from the floor. On the occasion in question, the window was open about eight inches from the bottom. Immediately underneath the window was a steam radiator resting on the floor and twenty-four inches high, so the top of the radiator was twenty-seven inches below the sill of the window. On the day of the accident the steam was turned on and the radiator was quite hot. In response to the call of the plaintiff, the mother went into the rest room and saw the plaintiff astride the radiator, her right leg being in the space between the radiator and the wall. She also observed a covered metal refuse can in front of the radiator. This can was thirteen inches in height and ten and one-half inches in diameter. The space between the radiator and wall was two and one-half inches. The building which housed the defendant club was located in a populous part of the city of Moline, and there was considerable traffic in the streets on two sides of the building. While plaintiff was in the rest room her mother observed through a window, located in the room where she was sitting, a couple of decorated cars travelling along the street and heard the honking of the horns on these cars.
Counsel for the plaintiff in their argument state that the heated radiator was a dangerous appliance; that the waste can was located near the radiator, and the radiator was located near the window; that the can and radiator formed steps to the window; that the position, or location, of these objects was tempting and alluring to the plaintiff and amounted to an implied invitation by the defendant to the plaintiff to climb upon the can and then upon the radiator for the purpose of looking out the window to see the traffic on the street below; that this childish impulse to look out of the window irresistibly impelled plaintiff to a place of danger astride defendant's hot radiator; that the inherent dangerous instrumentality was the hot radiator, and that defendant's liability for the injuries sustained by the plaintiff arises out of its control over the location of the items constituting the allurement and attraction and its control over the steam flowing through the radiator. Counsel state that the general rule is that the owner of property who directly, or by implication, invites another to come upon his premises owes his invitee a duty to exercise ordinary care for his safety while on his premises; that the combination of waste can, radiator and window should have been recognized by defendant as an attraction to children, and defendant should have taken proper safeguards to have avoided the injury which plaintiff sustained; that the questions of attraction and whether proper safeguards were taken or, if not, could have been taken and whether defendant should have for-seen that an accident might happen or could have been reasonably anticipated were proper questions to be considered by the jury in determining the question of defendant's negligence and were so considered and resolved by the jury against the defendant, and the finding of the jury should not be disturbed by this court.
In support of this contention, counsel for appellee cite and rely upon Howlett v. Dorchester Trust Co., 256 Mass. 544, 152 N.E. 895. In that case the plaintiff was a boy two and one-half years of age who had accompanied his mother to the defendant's bank. While in the bank the mother left the plaintiff on a bench located near a hot, unguarded radiator. The mother then went to the cashier's window, not more than twenty-five feet away from the bench, to make deposits for herself and for members of her family including the plaintiff. While the mother was making the deposits but before she had made a deposit for the plaintiff, the plaintiff in some unexplained way came off the bench and in contact with the radiator suffering burns and injuries for which he brought suit. In sustaining a verdict in favor of the plaintiff, a majority of the Supreme Judicial Court of Massachusetts said: "It (the defendant) was not an insurer, neither did it owe to anyone the high degree of care owed by a carrier to a passenger. At the most it owed only the duty to furnish a reasonably safe place for the use of those invited to its premises and to refrain from wilful and wanton negligence toward those licensed to be upon them." (Citing cases.) The court then held that plaintiff's status was that of an invitee and concluded: "It remains to decide whether there was any negligence on the defendant's part and although the question is close, upon the evidence it was for the jury to say whether the existing combination of bench and unguarded radiator was reasonably safe. We cannot say, as a matter of law, that the facts admit of but one interpretation and establish that the place was kept reasonably safe."
Counsel for defendant contend that there is no evidence in the record establishing any negligence or want of care on the part of the defendant; that the attractive nuisance doctrine is inapplicable; that the radiator was not an inherently dangerous instrumentality; that the radiator, refuse can and window were all in common use by people generally and their presence in the rest room imposed no obligation upon defendant to exercise any greater degree of care than it did exercise and the presence of the radiator and waste can in the rest room was not an invitation upon the part of the defendant to the plaintiff to use the can and radiator for steps to the window.
The motion of defendant for a directed verdict and its motion for judgment notwithstanding the verdict presented to the trial court the single question whether there was in the record any evidence which standing alone and taken with all its intendments most favorable to the party resisting the motions, tends to prove the material elements of her case. (Lindroth v. Walgreen Co., 407 Ill. 121, 130.)
The complaint in the instant case, based upon negligence, charges first: That the defendant failed to remove from its rest room a covered, metal refuse can about ten inches in diameter and thirteen inches in height; second, that the defendant failed to cover a steam radiator in the rest room with a guard; third, that the defendant failed to maintain an attendant in the rest room; fourth, that defendant failed to turn the steam off the radiator, and fifth: that defendant failed to close the rest room to children. No affirmative act of negligence is alleged. In order to sustain the judgment of the trial court we must conclude that the defendant was negligent because it had in its rest room a small ordinary covered metal waste can or basket or that it was negligent because it had in its rest room an ordinary steam radiator, uncovered and unguarded, such as is in use generally or that it was negligent in not furnishing plaintiff an attendant when she was in ...