Appeal from the Circuit Court of Winnebago County; the Hon.
ALBERT S. O'SULLIVAN, Judge, presiding. Judgment affirmed.
On December 2, 1957 Harry C. Johnson and Michael M. Vass executed a written instrument by the provisions of which Vass rented to Johnson the east half of the north half of the second floor of a three story building on East State Street in Rockford, Illinois with right of "access to the elevator on the first and second floors." The stipulated monthly rent was $90 but the agreement provided that in the event Johnson decided to use the entire second floor, the rent would be increased to $125 per month.
Mr. Vass is a book binder and carried on his business on the first and third floors of this building and Mr. Johnson conducted his printing business in the area which he leased on the second floor. On November 12, 1958 Mr. Vass wrote Mr. Johnson calling his attention to the fact that Johnson was using some of the unleased space on the second floor and proposed an increased rental. In this letter Mr. Vass said that because of higher taxes, higher water rates, higher cost of roof repairs, elevator maintenance and other costs, he could not afford to provide additional floor space without additional compensation.
An electric freight elevator served the three floors of this building which Johnson and his employees had the privilege of using. It consisted of a cage with a wooden floor. An overhead light bulb, operated by a pull-type chain, hung down from the top of the cage. The light worked properly when the premises were first rented by the plaintiff but for several months prior to December 23, 1958, the light was inoperative. The cage had no door of any kind but there was a safety gate on the second floor about six inches from the elevator shaft opening which opened and closed vertically. When the elevator was not at the second floor this gate automatically closed. In October, 1958 the owners of the property had installed upon the second floor about nine inches "ahead of the safety gate" two masonite or plywood swinging doors so constructed that they had to be opened in order to enter the elevator or elevator shaft. The elevator was equipped with locking and stopping devices and when it reached the floor level and the operator stopped it then in order to lock it in place it was necessary to turn a switch.
On December 23, 1958, Johnson arrived at his place of business about 8:30 a.m. An hour later he went to the first floor and returned to the second floor on the elevator with some materials from the Vass Bindery. When the elevator reached the second floor he stopped it and left the elevator with the materials in his charge intending to return to the elevator with a truck of materials from his printing establishment which were to be delivered to the bindery on the first floor.
Mr. Johnson was the only occurrence witness and as abstracted by his counsel, testified: "On the morning of the accident I used the elevator about nine-thirty. I went downstairs, got the work and brought it to the second floor. I had another skid load of work going back down to the first floor. I left the elevator on the second floor. The swinging gates were slightly ajar. The telephone rang. I went into the office and proceeded to take the elevator to go back down to the first floor. I had some printed material that was to go down to Mr. Vass' bindery. This printed material was on a truck mounted on wheels. When I went down to the bindery the first time, I talked to both Mr. Vass and Mr. Matthews, his foreman, and told them that I was bringing material up and down. I left the truck about two feet from the elevator shaft when the phone rang. I answered the phone, opened the elevator doors, and proceeded to pull the load to the elevator. The floor has steel serrations running crosswise, and you must give whatever you are pulling a tug to get it started. When I opened the doors, I looked at the elevator shaft. The elevator seemed to be there. It was dark inside. There was nothing unusual about it being dark inside as it is usually dark there. On certain days when the elevator is on the second floor, it is dark inside the shaft. At no time did Mr. Vass or any of his employees tell me that the elevator had been moved from the second floor. I could not hear the elevator move from where I was making my phone call. I fell to the bottom of the elevator shaft, about 20 feet." Mr. Johnson further testified that the cart, truck or skid, as loaded, which he intended to pull on the elevator weighed 400 pounds and may have been parked a distance of 10 feet from the elevator shaft when he went to his office on the second floor to answer the telephone; that he was on the telephone three to five minutes and when he returned to his cart or skid, the swinging doors were ajar "about the same as I left them. I reached behind me, opened the swinging doors and proceeded to back into the elevator. I was walking sideways, not backing in." He was then asked, "Now when you walked out of the elevator did you lock the elevator on the second floor?" The witness answered: "I'm not sure." He was then asked: "You do not remember whether you locked the elevator at the second floor or whether you didn't?" And the witness answered: "That is right."
During the interval after Mr. Johnson left the elevator at the second floor and his falling into the elevator shaft, the elevator, in response to lifting the cable by Jack Matthews, an employee of Mr. Vass, who was then on the first floor of the building, returned to the first floor where Matthews and Bob Dix, another employee of Vass got on the elevator and it proceeded to the third floor. Mr. Matthews testified he remained on the third floor 3 or 4 minutes rolling a steel wheeled truck over the floor and was on the elevator starting down and between the second and third floors at the time Mr. Johnson fell.
On March 30, 1960 the instant complaint was filed in the circuit court of Winnebago County by Harry C. Johnson to recover from Michael M. Vass and Magda Vass, the owners of the building, damages for the injuries he sustained as a result of this fall. The issues made by the pleadings were submitted to a jury resulting in a verdict in favor of the plaintiff for $10,000. The trial court determined, as a matter of law, that plaintiff was guilty of contributory negligence which precluded his recovery and therefore granted defendants post-trial motion and entered judgment notwithstanding the verdict in favor of the defendants in bar of the action. In the alternative, the court granted the defendants a new trial. The propriety of the ruling of the trial court in granting a new trial is not challenged.
The issue of contributory negligence is ordinarily and preeminently a question of fact upon which a plaintiff is entitled to have a finding of a jury. It becomes a question of law only when all reasonable minds, in the exercise of fair and honest judgment would, upon the undisputed facts, be compelled to reach the conclusion that such facts do not establish due care and caution on the part of the plaintiff. (Davis v. Springfield Lodge No. 158, Benevolent & Protective Order of Elks, 24 Ill. App.2d 102, 106, 164 N.E.2d 243.)
In the Davis Case, supra, a judgment in favor of the plaintiff, who sustained injuries when he tripped and fell over a bench or bar bell in the physical therapy room of the Elks Club at Springfield was sustained. The record disclosed that plaintiff was familiar with the quarters of the lodge and had been a member for many years. Upon the afternoon in question, he had been playing cards in the card room and decided to go to the toilet. In order to get to the toilet, which was located in the locker room, he left the card room, walked through the reading room, turned to the right and walked to the door of the physical therapy room intending to pass through it and enter the adjoining locker room. The door to the physical therapy room was not locked. He opened the door and found the room completely dark. In feeling around for the light switch he either fell over a bar bell or a bench which had been placed across the aisle through which a person would walk in going through the therapy room to the locker room.
In affirming a judgment for the plaintiff the court said: (24 Ill. App.2d 102, 106, 107, 164 N.E.2d 243) "We do not think it was negligence per se for plaintiff to enter the unlighted therapy room and attempt to locate the light switch on the wall. He was familiar with the club premises and knew there were toilet facilities in the men's room at the rear of the locker room; he knew that members using this room entered the physical therapy room and that they followed a path or aisle through the bar bells, mats and other paraphernalia across the therapy room to the locker room door; that this door led not only to toilet facilities but also the steam room, showers and swimming pool. The door to the therapy room was not locked and there was nothing to indicate to plaintiff or any other club member that the locker room should not be used. That members were going to the locker room through the therapy room on the night of the accident is indicated by the fact that McKinney, a member, was entering the therapy room on his way to the locker room to take a steam bath when he discovered the injured plaintiff. Under these circumstances it is evident that plaintiff in entering the dark therapy room did not knowingly expose himself to danger. The evidence affords no reasonable basis for concluding that plaintiff knew or had any way of knowing of any dangerous condition existing in the therapy room. There is no evidence that after discovering that the therapy room was in darkness that he did anything except to reach for a light switch. In judging plaintiff's conduct, it must be remembered that he was proceeding in familiar surroundings. When a person under such circumstances opens a door to find the room beyond in darkness, it would seem both natural and reasonable for him to reach for the light switch. He appears to have done only that which experience and observation tells us the ordinary prudent person does when acting under similar circumstances in his own home or other places with which he is familiar."
B. Shoninger Company v. Mann, 219 Ill. 242, 76 N.E. 354 is also cited and relied upon by appellant. The plaintiff in that case was an errand boy, sixteen years of age employed by Messrs. Thompson and Thomas who were sub-tenants of the defendant, who was in possession of a four story building which he, the defendant, had leased from the owner. During the course of his employment the plaintiff fell into a freight elevator shaft located near a rear entrance to the building. The court stated that the evidence disclosed that plaintiff had been in the employ of Thompson and Thomas for two or three weeks before the injury, had only been in the elevator two or three times and was not familiar with its surroundings or with that portion of the building where the elevator was located; that the elevator was not well lighted; that plaintiff did not know that the elevator had been taken to an upper floor; did not know that the shaft had been left open and unguarded and that plaintiff did not walk into the open elevator shaft but slipped and fell. Under these facts the court held that the question of contributory negligence was properly submitted to the jury.
In Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202, also cited and relied upon by appellant, it appeared that plaintiff was lawfully upon the premises of the defendants as an invitee and fell into an unprotected elevator shaft and was injured while passing along a narrow aisle or passageway in defendants' warehouse. It was contended by defendants that plaintiff was guilty of contributory negligence and counsel argued that if the light in the passageway was sufficient to enable the plaintiff to see the elevator shaft he should have used his eyes and avoided the danger or if it was too dark for him to see he should not have gone along an unknown passageway without a light. In answer to this argument the court said that the evidence was that the plaintiff was unacquainted with the room; that the interior of the building was but dimly lighted; that the entrance to the elevator shaft was unguarded and the light around the shaft very dim and held that under all the evidence it was for the jury to determine whether plaintiff was guilty of contributory negligence.
What the court held in the Davis case, supra, was that the plaintiff did not knowingly expose himself to danger in the dark therapy room. In the Mann case the evidence disclosed that the plaintiff was not familiar with the elevator or its surroundings and that he slipped and fell into the open unprotected elevator shaft. In the Pauckner case plaintiff was unacquainted with the premises. We have read and considered the other cases from this jurisdiction called to our attention by counsel for appellant. The controlling facts in none of them are analogous to the facts in the instant case. Here the plaintiff testified that the first floor was dark; that the second floor "could stand a light" but was all right. It clearly appears that upon the morning of this occurrence there was sufficient light to operate the elevator; that plaintiff was familiar with the location of the elevator shaft and its surroundings, had frequently operated the elevator, knew the condition of its equipment and its locking and stopping devices. Plaintiff testified that the locking device worked "after a fashion," but ...