Appeal from the Municipal Court of the Village of Oak Park;
the Hon. THOMAS W. BARRETT, Judge, presiding. Judgment affirmed.
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 22, 1959.
This is an appeal by defendant from a judgment entered in favor of plaintiff on a verdict of the jury for $30,000 for damages for personal injuries sustained on the premises of St. Bernard's church. A post-trial motion for judgment notwithstanding the verdict and, in the alternative, for a new trial was overruled.
The instance of which plaintiff complains occurred on January 28, 1956. Plaintiff was nearly 86 years old at that time. She had been a regular attendant at St. Bernard's church for more than fourteen years. On that day, as she left the church, she walked down the steps from the church entrance to street level. She was carrying an umbrella and a purse. When she got to the last of five steps, her feet went out from under her. She fell, broke her hip, and suffered permanent injuries. Since no question is raised as to the amount of the damages, it is not necessary to consider the nature of the injuries.
The bottom stair was 35 feet in width, the second stair 33 feet, and the third stair 31 feet. The two top stairs are divided into three sections by columns. The fourth stair is divided into eight-foot sections, and the fifth or top stair is divided into seven-foot sections. There were no handrails on any of the stairs.
The complaint alleges the existence of Section 67-10.3 of the Municipal Code of Chicago relating to handrails, which is as follows:
"67-10.3. (a) All stairways shall have walls, railings or guards on both sides and shall have handrails on both sides except as follows:
(1) Stairs less than forty-four inches wide may have a handrail on one side only.
(2) Intermediate handrails, continuous between landings, shall be provided where required to provide a lateral distance between handrails not exceeding eighty-eight inches.
(b) In Assembly Units every handrail mounted on a wall shall have its ends returned and joined to the wall."
It also alleges the existence of Section 78-5 of the Municipal Code of Chicago, which is as follows:
"78-5. Existing buildings other than dwellings as defined in section 78-12 of this chapter shall comply with all applicable exit requirements of this code and with the special provisions of sections 78-5.1 to 78-5.3, inclusive."
A violation of the duty upon which the liability of defendant was predicated is based upon its failure to furnish the stairway with a handrail or guard in accordance with the requirements of the provisions of the Municipal Code of Chicago.
There are three points advanced by defendant for reversal: (1) that plaintiff was guilty of contributory negligence as a matter of law, (2) that the sections of the ordinance relied on by plaintiff were not applicable to defendant, and that therefore, there was no violation of duty on behalf of defendant, and (3) that plaintiff's instruction number 5 had been improperly given.
The evidence indicates that plaintiff was elderly, that she wore bifocal glasses but was able to observe the condition of the steps and did so, and that, while she went down the steps, she was "kind of looking out on the street." She does not contend that the steps were slippery, or that her fall was caused by moisture on the steps, but only that defendant was negligent in not complying with the ordinance of the city of Chicago relating to handrails at exits. In view of this situation we cannot say as a matter of law that plaintiff was guilty of contributory negligence. There was no evidence of any negligent conduct whatsoever on the part of plaintiff.
Defendant's second contention, that the provision of the ordinance is not applicable to it, is based upon the fact, admitted by all, that St. Bernard's church was built long before the section of the ordinance was passed of which a violation is alleged. The legal proposition submitted by defendant is that the ordinance is effective only prospectively, that there was no violation of duty on behalf of defendant, and ...