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Watts v. Bacon & Van Buskirk

OPINION FILED NOVEMBER 18, 1959

LINDA WATTS ET AL., APPELLANTS,

v.

BACON & VAN BUSKIRK GLASS CO. ET AL., APPELLEES.



APPEAL from the Appellate Court for the Third District; — heard in that court on appeal from the Circuit Court of Champaign County; the Hon. CHARLES E. KELLER, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 18, 1960.

This case involves the liability of a supplier and installer of plate glass in the door of a drug store. Plaintiffs brought suit for injuries sustained by Linda Watts, a minor, who was struck by particles of flying glass from the door. They joined as defendants, the tenant and operator of the drug store, Harry J. Baker, Jr.; the owners of the building, Mae Greenman and Shirley Sostrin; and the supplier and installer of the plate glass, Bacon & Van Buskirk Glass Co., Inc., herein called the glass company.

At the close of plaintiffs' evidence, the trial court directed verdicts of not guilty for the owners of the store and the glass company, and the jury found Harry J. Baker, Jr., not guilty. Plaintiffs appealed only from the action of the trial court in directing such verdicts. The Appellate Court reversed and remanded as to the owners of the building, but affirmed as to the glass company. (20 Ill. App.2d 164.) We granted leave to appeal from that affirmance. The sole question presented upon this appeal is whether the trial court erred in directing a verdict of not guilty in favor of the defendant glass company.

On the evening of October 30, 1955, plaintiff William C. Watts, accompanied by his two minor daughters, contemplated purchasing certain articles at the drug store operated by the defendant Harry J. Baker, Jr. During the day, it had rained, snowed and sleeted and at the time of the occurrence, the temperature was near freezing. Watts held the left hand of his daughter Betty with his right hand and the right hand of plaintiff Linda with his left. Entrance to the drug store was gained through a doorway in which a plate glass door was mounted in a metal frame. The door opened toward the sidewalk. As they reached the door, Watts released the hands of both girls and reached out to open the door. As he touched the door handle or while in the act of reaching for it there was an occurrence characterized by him as an explosion whereby the lower two thirds of the plate glass in the door broke into jagged pieces of various sizes. Certain of these pieces struck the plaintiff Linda causing the injuries complained of.

Defendants Mae Greenman and Shirley Sostrin owned the building in which the drug store was located and Hyman Greenman, the husband of Mae and father of Shirley, looked after the property and collected the rent. Sundry drug items were sold in the store and food was served at the counter on its west side. It also housed a postal substation. Hundreds of customers entered the store daily and, in the opening and closing of this entrance door, persons, packages and other articles came in contact with the glass.

Defendants Mae Greenman and Shirley Sostrin remodeled the store front in January, 1955, at which time the glass door was installed. An architect designed the store front, and in the original plans specified the use of tempered glass in the door. At this time, Hyman Greenman went to the glass company and talked with its president about the different types of glass that could be used in connection with the installation of the door. The testimony establishes that it was possible that the difference between plate and tempered glass was explained to Greenman; that the difference in price was discussed; and that Greenman was told that plate glass was cheaper.

Greenman wanted an inexpensive door and ordinary plate glass of 1/4 inch thickness was used with his approval and agreement. In April or May, 1955, the original plate glass in the door was broken by a burglar who ran into it in an attempt to escape the police, and it was replaced with the same type plate glass.

Plaintiffs called a ceramic engineer who testified that tempered glass is five times stronger than plate glass, is more difficult to scratch and can withstand a blow by a hammer without breaking; and that when tempered glass breaks, the pieces have rounded edges rather than sharp and jagged edges of the type produced by plate glass in the process of breaking. Plaintiffs' expert neither examined the glass or the installation involved, nor testified as to the strength or suitability of the plate glass for the use to which it was put.

Plaintiffs charge the defendant glass company with negligence in the installation of the plate glass; in failing to use tempered glass or laminated safety glass; in utilizing a door with a single "push-pull" handle; in using plate glass of insufficient strength; and in failing to subject the glass to polariscopic examination. In their post-trial motion and subsequent appeals, they rely upon the alleged negligence of the glass company in using plate rather than tempered glass.

Upon motion for a directed verdict for defendant, it is the duty of the trial court to determine whether there was any evidence, together with all reasonable inferences therefrom, tending to support the material allegations of the complaint. In the absence of such evidence, the trial court should grant the motion. (Peters v. Catt, 15 Ill.2d 255; Butler v. O'Brien, 8 Ill.2d 203; Shevlin v. Jackson, 5 Ill.2d 43; Rotche v. Buick Motor Co. 358 Ill. 507.) The issue thus presented is whether plaintiffs have adduced any evidence fairly tending to establish the negligence of the defendant glass company.

In finding the trial court in error in directing a verdict for the owners, the Appellate Court stated at page 172:

"They knew of the use to be made of the leased premises and the nature and character of the traffic in and out. It is a reasonable inference from the testimony that they know that the architect had specified tempered glass for the door and not plate glass. The intendment most favorable to the plaintiffs is that the difference between the two types of glass was explained to the owners' agent. Coupled with the fact that the door had broken on a prior occasion, it is a reasonable inference that they knew or were chargeable with knowledge that the type of glass used was not suitable for the intended use." (20 Ill.2d 164, 172.)

We recognize that section 92(3) (b) of the Civil Practice Act (Ill. Rev. Stat. 1957, chap. 110, par. 92(3)(b),) provides that this court shall re-examine such cases brought to it from the Appellate Court as to questions of law only. However, where a motion is made in the trial court for a directed verdict, as was done in this case, the evidence may be examined to determine whether, when it is considered in its aspects most favorable to the plaintiffs, with all the inferences reasonably deducible, there is a total failure to prove an element necessary to maintain a cause of action. This process requires consideration of the evidence itself and not merely ...


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