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Drell v. American Nat. Bank & Trust Co.

MARCH 30, 1965.

SYDNEY FAITH DRELL, A MINOR BY RONALD E. DRELL, HER FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

AMERICAN NATIONAL BANK AND TRUST COMPANY, A CORPORATION, AS TRUSTEE UNDER TRUST NO. H9852; DRAPER AND KRAMER, INCORPORATED, APPELLANT; ECONOMY PLUMBING AND HEATING, INC., A CORPORATION, APPELLANT; LOMY F. RUHMAN AND MRS. LOMY F. RUHMAN, APPELLANT, DEFENDANTS. ECONOMY PLUMBING AND HEATING, INC., A CORPORATION, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

MRS. LOMY F. RUHMAN, THIRD-PARTY DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. IRWIN N. COHEN, Judge, presiding. Judgment affirmed.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment in the amount of $10,000, entered on behalf of plaintiff, against three defendants: Draper and Kramer, Incorporated; Economy Plumbing and Heating, Incorporated; and Mrs. Lomy F. Ruhman. By agreement, Economy Plumbing and Heating Company's third-party action against Mrs. Lomy Ruhman, was submitted to the court on the same evidence without a jury, and the court found for the third-party defendant, from which finding third-party plaintiff, Economy Plumbing and Heating Company appeals.

At or about 4:30 p.m. on September 26, 1958, the plaintiff, Sydney Faith Drell, an infant girl about eighteen months old, was playing with another child on a cement walk at the rear of a high rise apartment building located at 2930 Sheridan Road, Chicago, Illinois. The mothers of the children were nearby. The children and their parents lived in the building.

The defendant, Draper and Kramer, managed, controlled and operated the building. There was a rear entrance to the building, which was used by service people and by anyone using a baby carriage, stroller or other equipment that could not be taken in the front way. The rear entrance led to a walk that was about 25 to 30 feet long and about 5 feet wide. To the west of this walk, at the rear of the building, was a parking lot, and commencing at the south end of the walk between the west wall of the building and the parking lot, an iron railing. There was a commissary north of the service entrance to the building and a pillar immediately south of the commissary entrance. For some time prior to the date of this accident, the defendant Economy Plumbing and Heating, had been doing work in the building, which required the use of acetylene torches and tanks of oxygen. On the date of the accident and for about two weeks prior thereto, two empty oxygen tanks used on the job, were placed on the common walk next to the pillar, immediately south of the commissary entrance.

At 4:30 p.m. the defendant, Mrs. Lomy F. Ruhman, who lived about a half block away, arrived at the scene with her two-year-old son for the purpose of making a purchase in the commissary located in the building. She was also accompanied by her poodle dog on a leash. She noticed the children playing and greeted the mother of one of them, Mrs. Goldstein. She tied the dog's leash around the neck of one of two empty oxygen tanks. She then left her child with the dog and started into the commissary. The plaintiff's mother noticed her child going toward the dog and grasped her hand to stop her. The dog, however, came forward toward the child and pulled over the tank to which his leash was tied, causing the tank to fall upon the child severely injuring her hand. This suit was brought, resulting in a verdict of $10,000 against all the defendants.

Plaintiff's theory of the case is that defendant, Economy, was negligent in placing the oxygen tank in question in the commissary passageway under such circumstances as to endanger the safety of persons using the passageway; that defendant, Draper and Kramer, was negligent in permitting the tank to remain in the commissary passageway for a period of approximately two weeks immediately prior to the accident and that defendant, Mrs. Ruhman, was negligent in tying her dog's leash to the top of the oxygen tank. Each defendant has appealed independently, thus we will take their respective positions separately.

It is an elementary principle of law that a plaintiff, in an action for negligence, must show his own right to recover, a duty owed by the defendant to plaintiff, a negligent act or omission by the defendant which breaches that duty and a compensable injury to the plaintiff resulting from said breach. Price v. York, 24 Ill. App.2d 450, 164 N.E.2d 617 (1960). With these elements in mind we will first consider the negligence of Mrs. Ruhman.

[2-5] Plaintiff had a right to be playing on the sidewalk. Defendant Ruhman admits she tied her dog's leash to the top of the oxygen tank and that the dog in pulling on the leash upset the tank so that it fell and struck plaintiff, causing her a compensable injury. Thus we need only consider whether or not Mrs. Ruhman owed a duty to plaintiff. Mrs. Ruhman contends she could not foresee any injury occurring to the child by her act of tying the leash of her dog to the top of the tank. She reasons that a woman should not be charged with knowledge that such a tank is unstable. The rule pertaining to foreseeability is well stated in Kahn v. James Burton Co., 5 Ill.2d 614, 622, 126 N.E.2d 836, 840 (1955) where the court said:

All men are presumed to know those things which are matters of common knowledge and must be held, in the absence of actual knowledge or notice, to have reasonably anticipated such occurrences as in the ordinary nature of things reasonable men should know will probably occur. Every person owes to all others a duty to exercise ordinary 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.

We feel, as did the jury, that in the common experience of a reasonable person, Mrs. Ruhman should have anticipated that her dog, by pulling on its leash, would cause the tank to fall. The tank was tall and had a flat bottom. The leash was tied to the top of the tank. The dog was large enough to pull the tank over.

[6-9] Mrs. Ruhman also bases her contention that she could not foresee any injury to the child on the fact that plaintiff's mother was present. Mrs. Ruhman reasons that a reasonable person could not foresee that a child accompanied by a mother would be given an opportunity to approach a dog. We disagree with this contention. A reasonable person should foresee that a small child, while playing in a common passageway, will approach a dog. Also, there was evidence introduced that the child's mother made an attempt to pull the child from the dog. In Ney v. Yellow Cab Co., 2 Ill.2d 74, 84, 117 N.E.2d 74, 80 (1954) the court stated:

Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function. Bailey v. Central Vermont Railway Co., 319 U.S. 350. . . .

Whether or not the defendant, Mrs. Ruhman, was guilty of negligence proximately causing the accident, was a question of fact for the jury. We hold the evidence sustains the verdict against the defendant, Mrs. Ruhman.

Next we consider the appeal of Economy. Its first contention is that there was insufficient evidence introduced by plaintiff that a duty was owed by Economy to plaintiff. Economy alleges that plaintiff's exhibits and testimony did not show that the tanks were either top heavy or unstable and that it (Economy) offered evidence that the tanks were flat bottomed and were standing on a concrete floor, in a recessed area, away from that part of the premises where people customarily passed. Thus, Economy concludes that plaintiff's evidentiary facts were not sufficient to support the inferential fact that the presence of the tanks created a foreseeable hazardous condition. We disagree with this conclusion. There was ample evidence to show the stability or lack of stability of the tank from the exhibits produced by plaintiff. Furthermore, Mr. Daly, an employee of Economy, testified that he would sometimes tie the tanks together to make them more secure against falling over. The jury decided this factual issue in favor of plaintiff and we will not disturb that result.

Economy next contends, that assuming there was a duty on it owed to plaintiff, there was insufficient evidence that it breached this duty by placing the tank in the recessed area. This contention is likewise invalid as there was testimony by Mr. Daly that he had used or perhaps used the tanks in question. The words "Economy Plumbing" were written on the oxygen tanks. We feel that the evidence of these facts, introduced by ...


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