Appeal from the Circuit Court of St. Clair county; the Hon.
R.W. GRIFFITH, Judge, presiding. Judgments reversed.
MR. JUSTICE BARDENS DELIVERED THE OPINION OF THE COURT. Plaintiffs, who are members of the defendant country club, sued to recover damages for personal injuries sustained by Nella M. Blue and losses incidental thereto sustained by her husband, Charles Blue, the personal injuries having been suffered by plaintiff while she was on the club grounds and using the club equipment. Judgments were entered on jury verdicts in favor of both plaintiffs. It is from such judgments that this appeal is perfected.
The evidence shows that the defendant country club owns real estate and personal property which it maintains for its members and guests. In addition to the clubhouse and other facilities in connection with the golf course and tennis courts, the club maintains a swimming and bathing pool and a sun bathing and refreshment area where it provides tables and chairs, the tables being the type that accommodate large sun umbrellas. The accident in question happened in an area in front of the clubhouse wherein there was an outdoor concrete dance floor surrounded with a grassy area upon which area were situated the umbrella tables in question.
On the day of the accident in question, namely, July 13, 1952, two types of umbrellas were in use. Each type had a shaft which went through a hole or holes in the table. On one type the shaft was pointed at the bottom and was known as the spear or pin type umbrella. The other type was designated as the auger type. The shafts of all the umbrellas were the same length, as were the ribs and the canvas covering. All of the umbrellas were placed through a hole in the top of the center of a metal table and then through another hole or two lower in the table. The spear type of umbrella was held in the ground only by whatever frictional force existed and was applied to it when the point was inserted into the ground. The auger type, after being placed through holes in the table, was affixed to another shaft which was augered or screwed into the ground to a depth of one foot or more, and then a pin was placed through the shaft of the umbrella and its companion piece in order to hold the umbrella and table more firmly. Prior to June of 1952 the club had only the one type of umbrella, namely, the spear type. The auger type was not available prior to that time. However, in June of 1952 the club purchased four of the auger type umbrellas and these were installed in the sun bathing area, but a further distance from the concrete dance floor than the spear type umbrellas were ordinarily used.
The evidence shows that there were three types of tables used which varied in weight, diameter, and number of holes through which the umbrella shafts were inserted. The evidence also showed that the spear type of umbrellas would become disengaged from the ground with very little pressure because of the small frictional force that existed and because the point could only be jabbed into the dry ground an inch or an inch and one-half. These umbrellas would frequently tip over in any wind that was more than gentle, and the evidence showed that the subject of the tipping over had been discussed between several employees of the club and some of the officers of the club. On the other hand, the evidence showed that even in a strong wind the shafts on the auger type umbrellas would stay affixed to the ground, but the stays would turn inside out and the canvas would be stripped therefrom.
On July 13, 1952, Mr. and Mrs. Blue, the plaintiffs, and their nine-year-old son arrived at the club about noon or a little before. Mr. Blue proceeded to play golf and Mrs. Blue and her son alternately swam in the pool and sun bathed. Immediately before the accident to Mrs. Blue she was seated adjacent to the dance floor at a metal table which was equipped with a spear type umbrella. With her were two other ladies. The weather was and had been for a considerable time hot and dry. Just before Mrs. Blue was injured the other ladies had left the table. About this time it started to rain and a wind started to blow. In describing the velocity of this wind, the plaintiffs' witnesses did not seek to characterize the wind, but described the effect of the wind in telling of the wobbling of the tables, the blowing over of all of the spear type umbrellas, the carrying of one of the umbrellas a distance of 75 feet after the umbrella was raised ten or fifteen feet in the air, the bending of one of the shafts on the auger type umbrella, and the complete stripping of the canvas of two of the auger type umbrellas. Defendant's witnesses described the velocity of the wind in phrases such as "whirlwind" and one witness even designated it as "tornado." In any event, the umbrella at the table where Mrs. Blue was seated started to wobble back and forth and Mrs. Blue arose from the chair and started to reach up to close the umbrella at her table so as to reduce the effect of the wind upon it. Just as she was leaning over the table and in the act of reaching up to close the umbrella, a Mrs. Reiners, who had previously been seated at the same table, called to her boy who was in the swimming pool and Mrs. Blue then called to her boy who was also swimming. At this time a gust of wind hit the umbrella, lifting the table against Mrs. Blue, knocking her over backwards upon the ground with the table and chair on top of or alongside of her, and causing her very serious injuries which are the basis of this suit.
In addition to the members and employees of the club who testified on plaintiff's behalf, plaintiff also introduced a civil engineer who had drawn a plat of the club area involved and introduced testimony of a mechanical engineer whose calculations showed the effect of air velocity as applied to the types of umbrellas in use at the club.
Plaintiffs' complaint charges negligence of the defendant in five different sub-paragraphs as follows:
"(a) it did fail and omit to provide a proper sun umbrella firmly anchored at the table where plaintiff was seated;
"(b) it did fail and omit to furnish and provide a proper anchoring of the sun umbrella at plaintiff's table when it knew or should have known in the exercise of ordinary care that wind gusts such as occurred at the time and place aforesaid might occur, and could be reasonably expected;
"(c) it did fail and omit to furnish and provide a safe and suitable anchor for the sun umbrella placed by it at the table occupied by plaintiff, when it knew it had purchased and had placed in service sun umbrellas with safe and suitable anchors designed to reasonably withstand the aforesaid wind gusts;
"(d) it did not furnish for plaintiff's use, as aforesaid, a reasonably safe place to sit in the open outdoor area heretofore described."
Defendant filed an answer denying the negligence charges of the complaint and setting up as a separate defense an allegation that the sole proximate cause of the injuries to the plaintiff was an "act of God," Mrs. Blue's own negligence, or a combination of both.
The defendant now contends that the lower court committed error in refusing to direct a verdict or to enter judgment notwithstanding the verdict because, it asserts, no negligence of the defendant is shown. In the alternative defendant asks for a new trial because of a refusal of defendant's offered instruction on the question of "act of God" and because of the introduction of improper and prejudicial evidence and because the verdict is contrary to the manifest weight of the evidence.
In connection with defendant's contention that the lower court should have entered judgment notwithstanding the verdict, it is, of course, a familiar rule that defendants would be entitled to that motion or to a motion for a directed verdict only if there is a total failure or lack of evidence to prove a necessary element of plaintiff's case, when all the evidence is considered, together with all reasonable inferences therefrom, in its aspect most favorable to plaintiff. Bonnier v. Chicago B. & Q.R.R. Co., 2 Ill.2d 606, 119 N.E.2d 254. Defendant insists that the evidence discloses that it was guilty of no negligence whatsoever, but that even if guilty of negligence that its negligence was in no ...