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Kelly v. C. Iber & Sons

MAY 8, 1958.

VIOLA KELLY, PLAINTIFF-APPELLEE,

v.

C. IBER & SONS, INC., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria county; the Hon. HOWARD WHITE, Judge, presiding. Reversed and remanded.

PRESIDING JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

The plaintiff, Viola Kelly, brought suit March 25, 1955 to recover damages for personal injuries alleged to have been caused November 10, 1953 by the negligence of the defendant, C. Iber & Sons, Inc. The jury returned a verdict for the plaintiff for $15,500, and judgment was entered thereon. The defendant appeals. The defendant's motions for directed verdict at the close of the plaintiff's evidence, and at the close of all the evidence, and its post trial motion for new trial or judgment notwithstanding the verdict were denied.

The complaint consisted of two counts, and alleged, generally, that the defendant, a contractor, was engaged in completing the construction of a building known as the Limestone Community High School, in the city of Bartonville, and the plaintiff, while in the exercise of due care and while employed in the school, was injured November 10, 1953 due to the defendant's negligence. The negligence complained of was, Count I, that the defendant failed to keep a doorway free from obstructions, in that it permitted a piece of metal approximately six inches long and one half inch high, used in the construction of the doorway, to extend up from the floor at the side of the middle doorway area, a doorway through which it was necessary that the plaintiff pass; and that, Count II, in addition, the defendant failed to rope off, post, and guard the piece of metal; and that the plaintiff unexpectedly and without warning tripped over the piece of metal, causing her to fall to the floor and suffer injuries. So far as material, the answer denied the alleged negligence, the circumstances of the alleged fall, and the plaintiff's alleged injuries.

The defendant's theory is that the alleged acts of negligence, if they were negligent, were not the proximate cause of the plaintiff's injury; that those acts merely created a condition which had existed and was known to the plaintiff for some time prior to the plaintiff's injury; and that the proximate cause of the plaintiff's injury was either the negligent act of a third person in knocking the plaintiff down, or the plaintiff's contributory negligence in tripping over the piece of metal. The defendant also contends that counsel for the plaintiff was guilty of prejudicial misconduct in the examination of prospective jurors on voir dire, and the court erred in not declaring a mistrial or a new trial; that the verdict is excessive and based upon passion and prejudice, and was enhanced by the admission of incompetent evidence; and that the court erroneously instructed the jury.

The plaintiff, Viola Kelly, was employed at the Limestone Community High School as a cafeteria worker. The defendant, C. Iber & Sons, Inc., is a general contractor, and was engaged in completing the construction of the school building. The school was open and in use, but the cafeteria, and the gymnasium to the west of it, were not finished, the contractor was working around the place, there were some building materials obstructing passage to some extent through a three door doorway area near the cafeteria end of a hallway, and the plaintiff was aware she had to watch where she was going at all times. The doorway area in question was used for the passage of students between the academic part and the cafeteria part and the gymnasium part of the building. The doorway was also used by other persons, like Mrs. Kelly, the plaintiff, and the workmen in passing from the cafeteria and the gymnasium parts back to the academic part and vice versa. The plaintiff claims that there was a large bale of wire obstructing the easterly-most area of that doorway, and that there was a piece of metal in the floor obstructing passage through the right side of the center area of that doorway, and for those reasons, she was accustomed to using the westerly area of that doorway. She states that this piece of metal in the floor was observed by her for several days prior to November 10, 1953, she knew it was there, and she used this doorway area several times a day. Others had also observed it the same day. The doors were evidently not hung at the time, but the framework was in, and apparently, though the evidence is somewhat confusing, one or both of the two uprights, or mullions, in the middle of the doorway area on which two of the doors were to be hung were in place or partially in place. The piece of metal concerned was "U" shaped, about the size indicated in the complaint, and was set in the floor at the base of one of the middle uprights or mullions or where one of the uprights or mullions was later to be placed. The defendant's job superintendent, testifying not from independent recollection but from daily progress reports and some photographs taken some time after the incident concerned, indicated the doors were on, or hung, in this doorway, the frame in, and the middle uprights or mullions in place when the incident occurred. He said the doorway frame and two uprights in the middle thereof come as a single welded unit, there are two metal anchor pieces about 5 1/2" x 1 3/4" which fit in the floor, the two middle uprights fit over and are attached to those anchor pieces, and when so installed the anchor pieces are not exposed at all. The area was in use and was not roped off, posted with a sign, or guarded. The lighting was good, and the piece of metal was visible. The floor was concrete, the asphalt tile covering being not yet installed evidently at this particular point.

On the date in question, at about 1:30 in the afternoon, the plaintiff was taking the lunch money from the cafeteria to the office, and started out through the westerly part of that doorway area when some students came through the doorway toward her. She states that in order to avoid being run into by these children, she stepped sideways, tripped over this piece of metal in the floor, catching her right foot thereon, and fell to the right, principally on her right knee. The plaintiff's assistant, a Mrs. Mohn, who was following the plaintiff out of the doorway at the time, stated that the students "kinda hit" the plaintiff, brushed into the plaintiff, and kind of pushed her, causing her to fall, but she did not see them knock the plaintiff to the floor. The plaintiff did not remember, but did not think that the students hit or pushed her. She said they did not knock her to the floor. She stated that she did not step forward, but merely sideways, and that she did not have time to go forward any farther prior to the time she fell. She commented that if it had not been for the students coming towards her she would never have fallen. Students passing through that doorway area had run into her before this incident and afterwards.

No bones were broken, but she suffered some pain. She received first aid at the school, later treated herself there and at home, did not see her doctor until about August, 1954, and thereafter had medical attention from him and certain orthopedic specialists. She was not hospitalized, continued to work regularly, and lost no wages because of the injury. In fact, she has had a small wage increase since. She used leg bandages, elastic stockings, heat treatments, a particular kind of shoe, and a knee brace, which she continued to wear at the time of trial, and she used a cane. The right knee occasionally locked on her. The plaintiff was 57, a rather short lady, about 5'3", and rather heavily set, 230-300 pounds. She had no limp before the injury, got around normally, but had some limp afterwards, and some impairment of her ability to get around, though the Superintendent of the school said her ability to manage the cafeteria still is very fine. Her total medical and other expenses were about $730. She'd had no prior leg or knee trouble. At the time of trial in 1957 her right knee still bothered her, she still used the brace and cane, and still suffered some pain. Her medical evidence was to the effect her condition is permanent, a fall such as she had could cause the injury, she will need future medical services, and she has traumatic arthritis of the right knee. The defendant's medical evidence, in part, was to the effect she had chronic degenerative arthritis, and there was no definite indication of trauma, but that trauma could aggravate a pre-existing condition of arthritis.

Among the errors urged by the defendant it says that the court erroneously instructed the jury by giving the plaintiff's instructions Nos. 6, 8, 9, 11, 12, 15, and 16.

The plaintiff's instruction No. 6 was apparently intended to be a commonly called sudden emergency, sudden danger, or imminent peril instruction, and was as follows:

"If, without fault on his part, a person suddenly is confronted with what would appear to an ordinarily careful person to be danger, then he is not required to use the same degree of care which is required under ordinary circumstances, but in such a situation it is his duty to use that degree of care which would be used by an ordinarily careful person, taking such danger, if any, into consideration."

We think that instruction was, first, not proper as a matter of form. The usual phraseology of a so-called sudden emergency, sudden danger, or imminent peril instruction, in the cases and authorities we have examined, and which has been approved, is as follows:

"The court instructs the jury that if a person, without fault on her part, is confronted with sudden danger or apparent sudden danger, the obligation resting upon her to exercise ordinary care for her own safety does not require her to act with the same deliberation and foresight which might be required under ordinary circumstances."

See: Chicago Union Traction Co. v. Newmiller (1905) 215 Ill. 383; Kavanaugh v. Parret (1942) 379 Ill. 273; Budovic v. Eschbach (1953) 349 Ill. App. 163; Hemphill, Illinois Jury Instructions, Vol. 2, Sec. 4042 ff. The plaintiff refers us to no Illinois case, and we know of none, where an instruction on sudden emergency, sudden danger, or imminent peril, in the form of plaintiff's instruction No. 6 here given, has been given and approved. In Hawbaker v. Danner (1955) 226 F.2d 843, C of A, 7th, referred to by the plaintiff, a case arising in a Federal Court in Illinois, an instruction of the type here given was apparently given, but there was evidently no objection made thereto, no issue thereon in the Court of Appeals, and the propriety thereof as a matter of form was not passed upon.

There is considerable difference, as will be seen, between advising the jury, in a situation where a sudden emergency type of instruction is otherwise appropriate, that "the obligation resting upon her to exercise ordinary care for her own safety does not require her to act with the same deliberation or foresight which might be required under ordinary circumstances," and, on the other hand, advising the jury, as the plaintiff's instruction No. 6 does, that "he is not required to use the same degree of care which is required under ordinary circumstances, but . . . that degree of care which would be used by an ordinarily careful person taking such danger, if any, into consideration." A person, in all events, is required to exercise ordinary care for his or her own safety under the circumstances, though in a sudden emergency type of situation that duty does not require him or her to act with the same deliberation or foresight which would be required under ordinary circumstances, and that is all the jury should be told in an instruction of this nature, where it is otherwise appropriate and supported by the evidence. There is no distinction in "degrees of care," as such, so far as the plaintiff is concerned, and to ...


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