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Packard v. Kennedy

JANUARY 24, 1955.

EVELYN PACKARD, PLAINTIFF-APPELLEE,

v.

LESLIE KENNEDY AND EVA KENNEDY, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Lake county; the Hon. BERNARD M. DECKER, Judge, presiding. Judgment affirmed.

PER CURIAM:

Rehearing denied February 25, 1955.

This is an appeal by defendants, Leslie Kennedy and Eva Kennedy, from a judgment of the circuit court of Lake county, entered on a jury verdict awarding damages to plaintiff, Evelyn Packard, for personal injuries sustained on defendants' premises.

The issues presented herein are essentially whether plaintiff was guilty of contributory negligence as a matter of law, and whether the jury's finding on the special interrogatory was inconsistent with the general verdict and warranted its being set aside under the terms of the Civil Practice Act.

From the record it appears that plaintiff was employed by defendants in their home in Lake Forest, Illinois, as a private nurse on night duty attending the mother of defendant Eva Kennedy. Inasmuch as the physical features of the premises are significant in evaluating the conduct of the parties, we shall review those factors.

Defendants' home is set back some 50 feet from the street, and the only access from the street is a 6 to 8 foot wide driveway which extends in a north-south direction along the left border of the lot. A flagstone walk extends from the driveway to the front porch. The driveway widens at the rear of the lot, and turns to the right where it gives access to a 2-car garage. The double door of the garage is on its east wall, and on the north wall — the one nearest the house — there is a door which leads onto a flagstone walk that extends approximately 39 feet to the basement entrance. Directly above the basement door, and on the first floor level, is another door, which leads into the rear hall of the house. Just outside this door, and above the basement door is a concrete platform surrounded by an iron railing.

On the six nights preceding July 30, 1951, plaintiff's husband drove her to defendants' home, let her off at the flagstone walk that led to the front door, and then drove off. On the night of July 30, 1951, plaintiff drove herself to defendants' premises, and rode up the driveway to the rear area in front of the garage. As she opened the door to get out of the car, the automatic light in the car flashed on, and she saw the path leading from the garage door. When she closed the car door, however, she was in darkness, except for some light coming from the upper portion of the rear hall door. She proceeded to walk ahead on the flagstone path that led to the house until she came to the concrete slab that surrounds the basement entrance. She stepped upon it, and started to take the next step up, but fell into space to the bottom of the basement steps. When the maid found her, plaintiff explained, "I thought that was the kitchen door."

Defendant Eva Kennedy admitted that she knew that plaintiff came by automobile, but expected her to come the front way, which was lighted, and that if she knew plaintiff were coming in the back way she would have put on the kitchen door light, and would have been careful to warn her. That light, if lit, would have illuminated the area around the basement steps. Plaintiff however, testified to a conversation which occurred in the dining room that morning at the end of plaintiff's night duty, in which defendant Eva Kennedy asked plaintiff to return that night. When plaintiff explained that she would have to drive herself, Mrs. Kennedy told her to park the car in the rear and then use the back entrance.

Defendants denied the conversation, and defendants' maid, who served breakfast that morning, testified that she did not see Mrs. Kennedy in the dining room that morning. Defendant also offered the testimony of a reporter who made notes of a conversation between plaintiff and a representative of the defendants, while plaintiff was in the hospital and under heavy opiates, in which conversation plaintiff stated that she had never been told where to park her car, nor which door to enter. Plaintiff denied ever making any such statement.

Defendants' motions for directed verdict were denied, but the court gave the jury 2 interrogatories defendants tendered. The jury gave an affirmative answer to defendants' interrogatory as to whether plaintiff used due care; and a negative answer to the interrogatory, "Do you believe from the evidence that plaintiff was invited to use the rear entrance on the occasion in question?" Plaintiff objected to that interrogatory, and moved to strike it and the answer on the ground that it did not refer to an ultimate issue, and that it was contrary to the law and the evidence. Defendants, in turn, moved for judgment notwithstanding the verdict, in accordance with the special finding of the jury, and the court, in a written opinion, ordered that the special interrogatory be stricken, and overruled defendants' motions and rendered judgment on the general verdict.

Defendants argue first that plaintiff is precluded from recovering damages on the ground that she was guilty of contributory negligence as a matter of law in walking ahead in the darkness from the garage to the house in unfamiliar surroundings, instead of going in the front entrance.

The issue of contributory negligence is pre-eminently one for the consideration of a jury, and the issue is a question of law only when the undisputed evidence is so conclusive that the accident resulted from the negligence of the party injured, and could have been avoided by the use of reasonable precaution. However, where reasonable men, acting within the limits prescribed by law, might reach different conclusions, or different inferences could reasonably be drawn from the facts, the question of contributory negligence is for the jury. (Mueller v. Phelps, 252 Ill. 630; Blumb v. Getz, 366 Ill. 273.)

The fact that the plaintiff proceeded in a dark, unfamiliar area does not per se render her conduct negligent as a matter of law, as defendants contend. Thus, in Pauckner v. Wakem, 231 Ill. 276, where the plaintiff, en route to the bathroom in an unfamiliar warehouse, proceeded down a dark hallway and fell into an open elevator shaft, the court rejected the argument that plaintiff was guilty of contributory negligence as a matter of law and stated (p. 282): "If it was too dark for him to see, they (counsel) say he should not have gone along a dark and unknown passway without a light. We are of the opinion that under the evidence it was a proper question for the jury to determine whether appellee was guilty of contributory negligence."

Similarly, in Murphy v. Illinois State Trust Co., 375 Ill. 310, the court held the issue of contributory negligence to be a jury question where plaintiff left a tavern by the rear door, and then instead of turning east toward the end of the porch that led to the sidewalk that ran around the building, plaintiff turned west to the unlighted end of the porch, which led to a vacant lot, and fell into an open cellarway. The case is comparable to ...


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