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Stankowitz v. Goldblatt Bros.

SEPTEMBER 16, 1963.

BETTY ANNE STANKOWITZ, A MINOR, BY JEAN STANKOWITZ, HER MOTHER AND NEXT FRIEND, APPELLEE,

v.

GOLDBLATT BROS., INC., A CORPORATION, APPELLANT.



Appeal from the Municipal Court of Chicago; the Hon. NORMAN N. EIGER, Judge, presiding. Reversed and remanded. MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a personal injury action. Plaintiff was burned by exposed electrical wires connected with a water cooler which defendant maintained for its customers. Defendant appeals from a $5600 verdict and judgment, contending the trial court erred in denying its post-trial motions for judgment notwithstanding the verdict or for a new trial.

On July 12, 1957, plaintiff, then a two and one-half-year-old child, accompanied her mother to defendant's department store in Chicago. While looking at merchandise, the mother heard the child scream and found her next to an electric water cooler. Plaintiff's right calf was in contact with exposed wires, which connected the water fountain with an electrical outlet on the adjacent wall. She was taken by a store employee to a physician, who treated a burn on her right calf.

At the time of the injury, plaintiff weighed about 34 pounds and was about 3 feet tall. The water cooler, a self-contained unit, was 37 to 40 inches high, with a fountain jet on top, and was operated by a foot pedal located about an inch above the floor. The machine was about four inches from the south wall of the store. In this space an electrical wire led from the machine to an electrical outlet in the wall, located approximately one foot above the floor level. When found by her mother, plaintiff was facing east toward the machine, in a 2-foot wide space between the machine and a display platform to the west. She was pressed against the south wall of the store.

Plaintiff was too young to remember and testify as to what happened prior to her injury, and there were no occurrence witnesses. Plaintiff's mother testified that after she picked up plaintiff, she noticed a "hole" in plaintiff's right outside calf which looked like a burn. While awaiting help from defendant's employees, the mother looked at the electrical connection of the cooler. She observed that "the plug was half in the socket and half out. It seemed there was some broken wires sticking through, ravelled and exposed." The exposed wires were "right close to the plug," and "had no covering on them."

A store engineer of defendant, Kermit Williams, testified in behalf of plaintiff. He testified he was called to the scene immediately after plaintiff's injury, to make repairs. Defendant made no objection to this testimony. Williams stated: "When I got to the scene of the accident I observed the rubber covering on the plug of the cooler sticking in the receptacle had been pulled loose from the prongs and these prongs were exposed. . . . There was a rubber covering that covered the wires that go into the prongs and the covering had been pulled loose. . . . The prongs were in the socket. The rubber covering was separated. . . . The prongs were not exposed. The wires were exposed. . . . The nature of the repairs was to install a new plug on the cord." He further testified there was no apparatus, step or plank or stool directly in front and to the side of the machine, and that he had "seen children drinking from the machine many times."

Defendant's only witness was an employee, a saleswoman working on the floor where the injury occurred. She heard plaintiff scream and rushed over, arriving prior to plaintiff's mother. Plaintiff was about two feet in front of the machine, jumping up and down and crying. She noticed a "welt" on plaintiff's leg. After plaintiff's mother arrived and picked up the child, the employee looked at the electrical connection of the water cooler; she saw "bare wires were exposed where the plug was mashed down." She further testified that a few hours before, and while straightening merchandise on a platform two feet west of the water cooler, she looked at the electrical cord, plug, and socket, and saw no exposed wire — "the regular plug [was] on the cord as it should be." The water cooler was functioning properly.

Defendant contends that on this record it was entitled to a directed verdict. Defendant's motion for judgment notwithstanding the verdict presented the single question whether there was in the record any evidence which, standing alone and taken with all its intendments most favorable to plaintiff, tended to prove the material elements of her case. Evidence favorable to plaintiff's case was all that could be considered by the trial court in this inquiry. If there was a total failure to prove one or more of the essential elements of plaintiff's case, the motion for a directed verdict should have been allowed. Tucker v. New York, C. & St. L.R. Co., 12 Ill.2d 532, 534, 147 N.E.2d 376 (1958); Moss v. Wagner, 27 Ill.2d 551, 554, 190 N.E.2d 305 (1963).

As related, the only testimony as to the condition of the plug was descriptive of its state immediately after the occurrence — in substance, that the hard rubber sheath covering the plug was pulled back and bare wires were exposed.

Defendant contends there is no evidence in the record justifying submission to the jury of the question of defendant's negligence because: (1) the defective condition of the plug was not shown to have existed prior to the instant occurrence; and (2) that if any defective condition did exist prior to the occurrence, there is no evidence from which the jury could conclude that it existed for a sufficient period of time so that defendant, in the exercise of ordinary care, should have had notice of it.

In the absence of direct testimony showing a defective condition to have existed prior to the occurrence, defendant argues that the jury's verdict could only have rested on speculation. To argue thus is to deny the jury the right of drawing reasonable inferences from the evidence before it. As stated in Lavender v. Kurn, 327 U.S. 645 (1946):

"Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear."

This language was cited with approval by our Supreme Court in Lindroth v. Walgreen Co., 407 Ill. 121, 133, 94 N.E.2d 847 (1950), where the court also stated that "the focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury."

We believe the nature of the testimony permits a reasonable inference that the defective condition of the plug pre-existed plaintiff's contact with it. To hold otherwise would place an unreasonable burden on plaintiff. This was a fixed appliance, attached to defendant's premises. We believe also, contrary to the trial court's ruling and as is properly argued by defendant, that it is a reasonable inference that plaintiff herself may have caused the wires and prongs to have become exposed, by stepping upon the plug in an attempt to raise herself high enough to drink from the fountain.

Under either of the foregoing inferences, the pronouncements in Kahn v. James Burton Co., 5 Ill.2d 614, 126 N.E.2d 836 (1955) are decisive here. Every person owes to all others a duty to exercise care to guard against injury which may naturally flow as a reasonably probable and foreseeable consequence of his act, and the law is presumed to furnish a remedy for the redress of every wrong. The duty to exercise ordinary care to avoid injury to another can extend to remote and unknown persons. The creator of conditions dangerous and hazardous to children, because of their immature appreciation of such dangers and hazards, must be held to a standard of conduct for the ...


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