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Donoho v. O'connell's

OPINION FILED JANUARY 24, 1958.

BETTY DONOHO, APPELLANT,

v.

O'CONNELL'S, INC., APPELLEE.



APPEAL from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. ARTHUR J. MURPHY, Judge, presiding.

MR. JUSTICE BRISTOW DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 19, 1958.

This court has granted plaintiff, Betty Donoho, leave to appeal from a judgment of the Appellate Court reversing the judgment of the circuit court of Cook County, and directing that judgment be entered for defendant, notwithstanding the jury verdict awarding plaintiff $20,000 as damages for injuries sustained when she slipped on the floor of defendant's restaurant.

The issue in this cause is whether, under the facts and circumstances most favorable to plaintiff, there was any evidence of negligence by defendant in the maintenance of its premises, which could properly be submitted to the jury.

A comprehension of the sequence of events necessitates a review of certain physical features of defendant's premises. Defendant's restaurant at 1112 Wilson Avenue, Chicago, involved herein, has two entrances, both located at the southeast corner of the building: the Wilson Avenue entrance on the south wall, through which plaintiff entered, and one leading to the elevated railway station, on the east wall. Immediately north of the "L" entrance on the east wall is a table, referred to as a "stand-up table," which is approximately 4 feet high, 24 inches wide, and extends from the east wall into the room some 3 feet, so as to form an areaway between the corner entrances and the stand-up table. A grill is located in the south windows along the south wall, and another grill extends along the west wall, half the distance back. Parallel to and in front of this grill along the west wall there is a counter at which are 8 stools for customers. To the east of this counter, and further north so as to be in line with the stand-up table, there are three or four round tables, lower than the stand-up table, and with chairs around them to accommodate customers.

With reference to the circumstances of her fall, plaintiff was the only witness on her own behalf. From her testimony it appears that she was 56 years old and regularly employed as a beauty operator, and that at a little after 7:45 P.M. on June 22, 1954, she entered the Wilson Avenue entrance of defendant's restaurant. There were about 15 customers in the restaurant at the time, including the people at the round tables, and a man standing at the south end of the stand-up table, who was having a sandwich and a cup of coffee. Plaintiff took the only vacant seat at the counter, which was next to the last seat from the north end of the counter.

Shortly after plaintiff entered, the man at the stand-up table left, and the bus boy removed his dishes, and after plaintiff placed her own order for a hamburger and coffee, a second man took the first man's place at the stand-up table. He also had a sandwich and coffee, and when he left there was no one using the stand-up table or in the vicinity thereof. The bus boy picked up the dishes, cleaned off the table, and then swept in back under the round tables, but, according to plaintiff's testimony, she did not see him sweep in the areaway in front of the stand-up table.

When plaintiff rose to leave, she had been in the restaurant approximately 30 minutes, and more than 15 minutes after the second man left the stand-up table. Intending to leave by the "L" entrance, she walked south from her place at the counter, to the stand-up table, turned in front of it, and took two steps in an easterly direction, when the sole of her foot came in contact with something, and she slipped and fell forward on her left side. She lay on the floor facing south with her feet to the west and her head to the east, about 16 inches from the door leading to the "L" station. When she could not get up, a Mr. Miller and the counter boy picked her up, and sat her in a chair.

Plaintiff testified further that while she was seated there, she observed a piece of partly smashed grilled onion, in the form of a ring about the size of a half-dollar, lying on the floor about two inches from the stand-up table, in the area where she had been. She also noted a dark smear on the floor, about 10 inches long and an inch wide, that looked like grease. When her shoes were taken off at the hospital, there was also a smear about 3/4 of an inch wide and 3 inches long on the sole and on the side of her left shoe, which started at the center of the sole, and ran up to the toe.

Testifying on behalf of defendant were the night manager, the counter man, and the bus boy at the time of the occurrence, as well as the employee who waited on plaintiff. None of them saw plaintiff fall, but admitted seeing her lying on the floor and helped her to the chair. Nor did they see any onion rings, or any other debris, or food particles, or moisture on the floor; and they all suggested that the mark they saw on the floor, which was about 3 inches in length and about an inch wide, was probably caused by plaintiff's heel.

James Lawler, the employee who waited upon plaintiff, testified further that the floors were swept every hour and were mopped at least 3 times a day, and that he saw the bus boy sweep the floor about 15 minutes before the accident. In describing the way the bus boy cleaned the tables, which he had seen many times, he explained that the dishes are picked up first in a tray, then set down on a chair, or something, while the bus boy uses a damp cloth to clean the table off so that the next customer can eat there.

The bus boy, however, stated that if there is anything on the tables after he removes the dishes, he cleans it off with a wet towel and brushes it into the tray, and also cleans up anything that might be on the floor, such as napkins and food particles. He also claimed he mopped the entire floor about 3:00 P.M., and cleaned the third round table, but not the stand-up table, about 10 minutes before the accident, and that he swept the floor in the vestibule area about 15 minutes before plaintiff fell.

One of the police officers, who arrived at 8:35 P.M. in response to a radio call that a woman had fallen in the restaurant, testified that he did not see anything unusual on the floor, or any skid marks, but that he was not there to investigate the accident, but only to take care of the injured party. The other officer stated that he made no inspection, and no one pointed anything out to him.

On the basis of substantially the foregoing evidence, and the uncontroverted medical testimony, the jury returned a verdict for plaintiff for $20,000, and the judgment entered thereon by the trial court was reversed by the Appellate Court, with directions to enter judgment for defendant notwithstanding the verdict.

In reviewing that judgment we must ascertain from the evidence and inferences most favorable to plaintiff whether the issue of defendant's negligence in the maintenance of the premises should have been submitted to the jury. Mueller v. Elm Park Hotel, 398 ...


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