Appeal by defendant from the Circuit Court of Cook county; the
Hon. LEE W. CARRIER, Judge, presiding. Heard in the third
division of this court for the first district at the October
term, 1952. Reversed and remanded. Opinion filed June 18, 1953.
Rehearing denied July 10, 1953. Released for publication July 10,
MR. JUSTICE FEINBERG DELIVERED THE OPINION OF THE COURT.
Rehearing denied July 10, 1953
Plaintiff brings this action to recover damages for the death of Louis Pappas, her husband, alleged to have been caused by the negligence of defendant. Upon a trial with a jury a verdict for $10,000 was returned. Defendant's motions for judgment notwithstanding the verdict or a new trial were denied and judgment entered upon the verdict. Defendant appeals.
The evidence discloses that on Sunday, March 2, 1947, at about the hour of 12:15 p.m., deceased was in the restaurant conducted by him in a three-story brick building, located at the southwest corner of Wells and Van Buren Streets. An explosion then occurred, which demolished the entire building. The restaurant was in the portion of the building farthest west from the corner. The deceased was killed in the explosion.
The charges of negligence in the complaint in substance are: that defendant failed to exercise reasonable care in the installation and maintenance of its pipes and equipment used for the purpose of conveying and distributing illuminating gas to the premises in question occupied by deceased; that it permitted the escape or leakage of illuminating gas, which proximately caused the explosion; that it permitted illuminating gas to escape, to seep into and accumulate in and about the said building; that such escape or accumulation of the illuminating gas proximately caused the explosion; that it failed in its duty to exercise reasonable care to inspect its pipes and equipment in question, to determine whether the same were in a reasonably safe condition, and to detect the leakage or accumulation of illuminating gas in and about the premises in question; and that the breach of its duty resulted in the explosion.
There were no eyewitnesses to the cause of the explosion. The proof of negligence rests largely on expert testimony relating to the condition of the service pipes, furnishing illuminating gas to the store conducted by deceased, which were found at the premises after the explosion; on evidence of previous complaints made to the defendant about the appearance of the odor of gas about the building in question, indicating leakage; and upon such inferences as could reasonably be drawn from the facts and circumstances in evidence.
Many errors are assigned by defendant for a reversal of the judgment, but in the view we take of this record, it will not be necessary to discuss all of them.
We cannot agree with defendant that there is no evidence of negligence. We think the evidence, with all its reasonable inferences, presented an issue of fact for the jury.
In Janovicz v. Schiesher [350 Ill. App. 499], Docket No. 45946, opinion filed in the April term, we said:
"It is important in a case like this, where there are no eyewitnesses to the accident and proof of negligence rests upon circumstances and inferences, that the jury be properly instructed and not misled or confused by the court's instructions."
Instruction No. 1, given for plaintiff, is virtually a verbatim statement of the charges in plaintiff's complaint. It contains approximately 1,200 words. It covers four pages of the abstract and concludes with the statement that defendant, in its answer, denies that the explosion was due to or caused by the escape of gas; denies that it committed any of the acts of negligence with which it is charged; denies that the alleged escape of gas was due to or caused by its alleged negligence; that defendant denies that it had any knowledge of the alleged escape of gas, and denies that said deceased, Louis Pappas, was in the exercise of due care or caution for his own safety. The concluding sentence of the instruction is: "These are the issues which you are to determine from the evidence and under the instructions of the Court."
This court (Second Division), pointed to many definite warnings in other cases concerning the propriety of this type of instruction and reversed the judgment for plaintiff for the giving of such an instruction in Signa v. Alluri [351 Ill. App. 11], Docket No. 45818, opinion filed at the April term of court. The difference between the instruction in the case cited and the instant instruction is that the latter is not a peremptory instruction; otherwise the entire criticism in the case cited could well be directed to the instant instruction. There need be only a simple, concise statement of the issues raised by the complaint and answer, without the characterizations, repetitious, and argumentative recitals usually found in a complaint, and, in some instances, allegations containing evidentiary facts.
The instant instruction, which sets forth the charges of negligence in the language of the complaint, contains erroneous statements of law governing the liability of defendant. The third and fourth paragraphs of the instruction read as follows:
"The complaint further alleges that on or about March 2, 1947, and for several years prior thereto, said deceased, Louis Pappas, was a tenant of the store premises known as 209 West Van Buren Street, Chicago, Illinois, in the ...