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Johnson v. Central Tile & Terrazzo Co.

MAY 11, 1965.




Appeal from the Circuit Court of the 17th Judicial Circuit, Winnebago County; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Judgment reversed in part and affirmed in part.


The plaintiff, Karl R. Johnson, brought this suit for injuries sustained in a fall in the entranceway of the building of Home Savings & Loan Association of Rockford (herein called Home). Besides Home, the plaintiff also sued Linden & Sons, Inc. (herein called Linden), the general contractor, and Central Tile & Terrazzo Co. (herein called Central), the subcontractor, who was working on the floor in the entranceway the day the plaintiff fell.

The jury returned a verdict in favor of the plaintiff and against all three defendants in the sum of $30,000, and the court entered judgment thereon. Each of the defendants contends that the court should have directed a verdict in its favor and that the verdict was contrary to the manifest weight of the evidence. In addition, Linden charges error in the giving and refusing of certain instructions, and Home asserts error in the admission of certain evidence, which error, however, was not pursued in its Brief and Argument, and consequently, will not be considered.

On July, 13, 1961, Home entered into a written contract with Linden, as general contractor, for the construction of a new building. Linden subcontracted to Central the furnishing and installing of the terrazzo, tile and slate called for by the plans and specifications.

The new building was opened for business by Home on September 17, 1962. The work was substantially completed by this time. On the day following — the day of the accident — Linden had some workmen on the premises completing inconsequential items. The terrazzo work had previously been completed, but the architect had called Central asking it to return to bring out the color in the floor at the east entrance of the building. In response, two of Central's workmen were sent to the building on September 18, 1962, to work on the floor in the east entranceway, the general area where the plaintiff fell.

Because of conflict in the testimony as to where the workmen had been working at the time of the occurrence, we describe this entranceway. It is on the east side of the building and provides access thereto for customers from the building parking lot, which is directly to the east. There are two, glass outer doors and then a distance of about 18 feet to the glass doors providing access to the part of the building occupied by Home. About 9 feet inside the outer doors, and to the left, or south, is an entrance to an insurance office. To the right of the entrance doors, or to the north upon entry, is a railing, extending for about 9 feet along the stairway to the basement. The width of the entranceway between the railing and the wall, to the left, is about 9 feet. Beyond the railing, which guards the stairway to the basement, the entranceway extends to the north, or right, to give access to the stairway to the basement, the stairway to the second floor, and to the elevator. This part of the entranceway exceeds 10 feet in width from the north side to the railing just mentioned.

With the facts in mind, we turn to the various versions of what transpired on the day of the accident. Richard Boomgarden, an employee of Central, and Dan Selk, a helper, were sent by their employer to Home, with instructions to bring out the color of the floor on the east entranceway of the building. This was done by applying a mixture of linseed oil and turpentine to the floor, and then buffing the floor. Boomgarden testified that they applied no wax, soap or water, but rather swept the entire area before applying the mixture.

He testified that they arrived at the building at approximately a quarter to eight on the morning of September 18. After arrival and before commencing work, he asked a man inside Home building if Home would lock the doors because of the work. The man answered, "I'm sorry, it's a day of business. I can't." He stated that they first treated the area in front of the elevator, from the north wall south to about, or a little beyond, the line of the railing of the stairway. They completed the work in this area before 9:00 o'clock. They then did the stairs and landing to the basement: next, the stairs and landing and balcony above the first floor. These areas were all completed in the forenoon.

Boomgarden testified that they did not work on the entranceway between the outer doors and inner doors leading to the Home portion of the building, until after lunch. Some question arose as to the paper he laid on the floor while working on the area in front of the Home entrance. He testified that when he first arrived in the morning, he placed a sheet of paper, about three feet wide, between the outer doors and the entrance to the insurance office, on the south side of the entranceway. This was done because a safe was to be moved into that office. He further testified that in the afternoon, when doing that part of the entranceway between the outer doors and the Home inner doors, he did half the width of the entranceway at a time. He was not positive whether he first worked on the south or north half. However, when he first worked on half the entranceway, he had a sheet of paper about three feet in width over the other half and between the inner and outer doors. He said that people would normally walk on the paper when it was on the floor; and that this would keep them from walking over the area where he was working and from tracking linseed oil onto Home's carpeting.

Boomgarden's helper, Daniel Selk, was 19 years old on the day in question and had worked for Central less than a year. He contradicted much of Boomgarden's testimony. He first said that after applying the linseed oil and turpentine by rubbing it into the floor with a rag, they used soap and water to clean the floor and then applied a wax and polished the floor with a large buffing machine. Later he stated that he was not sure about the use of soap, water or wax. He didn't remember what part of the entranceway they did first, but testified that they had done work on that part between the outer and inner doors, prior to lunch.

Selk said that they put down only one sheet of paper, and that it ran in an easterly and westerly direction straight from the outside doors to the inside entrance of Home. He did not recall that anyone went into the insurance office or delivered anything there. At one point, he testified that he did not recall at what stage they laid the paper, but at another point, testified it was after they had done half the entranceway. He confirmed that Mr. Boomgarden had talked to someone, apparently connected with Home, who said they could not lock the doors. Both witnesses said there were no barricades or warnings of the work in progress, and neither saw the plaintiff.

The plaintiff testified that he went to the Home building at about 10:30 in the morning of September 18. He was a real estate salesman and was going to check on the progress being made on a mortgage application pertaining to real estate which he had sold. He entered the building through the east doors and walked across the terrazzo entranceway. He did not notice any men working, or any equipment, but did notice a strip of paper along the south wall of the entranceway, extending all the way to the inner doors leading to the Home portion of the building. He walked at a normal pace, not looking at the floor, but straight ahead. The weather was dry as was the parking lot outside. When he had proceeded to a point about a foot from the inner doors, his heel slipped, as if on grease, and he fell. As he was getting up, he briefly looked at the floor and saw no substance on the floor at that point, but did see a mark like a heel mark. He did not examine his clothes for any foreign material after he got up, and did not return to the entranceway where he fell. He didn't see anything unusual about the floor. After the fall, he went into the Home office and sat down for a while. About 10 or 15 minutes later, he saw his brother there; they left the building by another exit and went to a nearby restaurant for a cup of coffee, after which, he returned to his office. By this time, plaintiff experienced severe pain and felt a numbness in his legs. An ambulance took him from his office to the hospital.

The plaintiff's brother was a director of Home and went to the new place of business on the day in question to see "how things were shaping up." He arrived sometime between 10:00 and 11:00 in the morning and entered through the same east entrance. He testified that as he entered the building, one or two men were working on the floor at a point about 15 feet inside the outer doors and along the south wall. There was some goo on the floor, and he stepped to his right, which would be along the railing, to get around it. The men were working in the area between the door to the insurance office and the inner doors to the Home office area. The buffer was standing in the center of the area where they were working. The area covered by the substance was 5' by 5', or probably more. The men were on their knees and to his left, as he walked in. He couldn't say that he saw any paper. He saw his brother shortly after he entered the building and did not return to the building again that day.

Central contends that the trial court should have directed a verdict in its favor and that the verdict, as to it, is contrary to the manifest weight of the evidence. This position is bottomed on the proposition that its workmen did no work, on that portion of the entranceway between the outer doors and the inner doors to the Home lobby area, until after the 12:00 ...

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