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Martin v. Cline

OCTOBER 24, 1957.

THOMAS C. MARTIN, A MINOR, BY THOMAS E. MARTIN, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

PHIL CLINE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Williamson county; the Hon. C.E. WRIGHT, Judge, presiding. Reversed.

JUDGE SCHEINEMAN DELIVERED THE OPINION OF THE COURT.

While visiting his grandfather's drug store, plaintiff, a child of 14 months, removed a bottle of sulphuric acid from a shelf, dropped it, and was burned severely. The jury, answering a special interrogatory, found the defendant grandfather guilty of wilful and wanton misconduct and returned a verdict in favor of plaintiff in the amount of $7,500, upon which judgment was entered. Motions for directed verdict and for judgment notwithstanding the verdict were denied.

Defendant contends that as a matter of law he was not guilty of wilful and wanton misconduct and that the trial court erred in overruling its motions for directed verdict and for judgment notwithstanding the verdict.

On the day of the accident the child had come to the store in the company of his mother and aunt, both being daughters of the defendant. After having made the purchases for which they came, they accepted their father's invitation to have lunch with him in one of the booths in the store.

While eating plaintiff became restless and made it apparent that he wanted to get out onto the floor. His mother restrained his considerable squirming, but his grandfather urged her to let him down, assuring her that he "wouldn't hurt anything" and that he would be where "we can watch him."

The group then watched him from the booth as he approached another booth where two other children and their mothers were eating. Almost immediately thereafter plaintiff's mother lost sight of him, so she stood up in the booth and saw him in the prescription department of the store just as he was picking up a bottle.

She started to try to get out of the booth to get to him, telling her father that the child had a bottle. But defendant told her to sit down and finish eating, that he would pick him up and bring him back. The defendant then went over to the aisle of the prescription department where the child was and saw him walking with a bottle in his hand. As he called to him the boy dropped the bottle, breaking it, and then slipped and fell into the liquid.

The child screamed and defendant rushed to him. Already his clothing had started to "disintegrate" from the action of the acid. First aid was administered and the child was taken to the hospital.

The store had the usual shelves along the side walls, also a row of show cases parallel to the wall with an aisle between them and the shelves. Toward the back of the store, the show cases changed to a work counter with a semi-partition about head high concealing the counter from the store. This was the prescription department, with an arched window in part of the partition, through which prescriptions were handled.

Along this partition on the inner side of the store, there was a row of five booths with tables and seats where food was served. Near the end of this row of booths was one of three openings permitting access to the prescription department behind the show cases and partition. The wall shelves continued on behind the partition, and acids were kept in that area on an open shelf about two feet above the floor. There was testimony that the area behind the prescription counter was not open to public use.

The defendant explained that the acids were not kept in a closed case because of the danger of accumulating fumes, and they were not on a high shelf because that would involve danger in reaching upward for the bottles.

The sole issue before this court is whether on the above facts it can be said as a matter of law that defendant was not guilty of wilful and wanton misconduct.

This court recognizes the principle that where there is any evidence in the record, construed most favorably to the plaintiff, which tends to prove the charge of wilful and wanton misconduct the question is properly within the province of the jury to decide. But as a corollary thereto where such evidence so considered does not tend to prove wilful and wanton misconduct a court should not hesitate to direct a verdict in favor of defendant. Robertson v. New York Cent. R. Co., 388 Ill. 580; Trumbo v. Chicago B. & Q.R. Co., 389 Ill. 213; Bartolucci v. Falleti, 382 Ill. 168.

We believe that the facts in this case are such that the conduct of defendant cannot reasonably be said to come within the ...


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