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Jurney v. Lubeznik

JUNE 21, 1966.

WILLIAM JURNEY, PLAINTIFF-APPELLEE,

v.

JOSEPH LUBEZNIK, A/K/A JOSEPH LUBCZNICK OR A/K/A JOSEPH LUBEZNICK, DEFENDANT-APPELLANT.



Appeal from the Circuit of Court of Cook County; the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. Judgment affirmed.

MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT. This is an appeal from a judgment entered in favor of plaintiff, after a jury trial, in the amount of $25,000 for injuries received in a fire.

This case was previously tried and a judgment entered in favor of defendant, which was reversed on appeal because of an improper instruction. Jurney v. Lubeznick, 54 Ill. App.2d 372, 204 N.E.2d 166 (1964).

Since approximately 1955 defendant owned and operated the Arcade Hotel located at 1011-1013 West Madison Street in Chicago, Illinois. The clientele of the hotel were people who lived on West Madison Street. The charge to spend the night in one of the sleeping rooms was 80 cents. There were a number of permanent residents who paid $5.25 per week. The first floor of the building contained stores and the second and third floors contained the hotel. There were approximately 70 sleeping rooms or cubicles on the third floor of the building or second floor of the hotel and about 60 cubicles on the second floor or first floor of the hotel. This floor also contained the hotel desk and a lobby which had a television set, tables for checkers or cards and places to sit for the purpose of reading. The cubicles themselves were 6 ft. by 8 ft. The walls of the cubicles did not reach the ceiling, the ceiling being about 12 ft. high and the walls about 7 1/2 ft. high. The cubicles were enclosed at the top with wire. The cubicles were furnished with a cot, a dresser and a chair together with bedding for the cot. Entry was through a wooden door which could be locked by the occupants.

The cubicles were supplied with a light fixture which hung down into the center of the room from a conduit. The fixture had a pull type switch and the socket was fitted with a light bulb of 15 watt capacity because the building was over 50 years old and a larger bulb would blow fuses and perhaps cause a fire. A 15 watt capacity bulb was felt to be sufficient since the cubicles were basically sleeping rooms. Light shades were not supplied for the lights, because with the doors closed, one could not see into the cubicles from the aisle, and if there was a shade on the light the density of the light coming through the top of the cubicle could not be seen. Thus, a person would be unable to tell if a tenant was using a larger bulb in the socket. There was testimony that the tenants often used paper for shades on these bulbs and had replaced the bulbs with larger ones and that this practice was known to defendant and his employees.

After defendant leased the premises in 1955, he installed an automatic sprinkler system which contained a sprinkler head located over every 9 square feet of both floors of the hotel. These were set by the fire department to go off if the temperature got to 160° Fahrenheit. There was an automatic sprinkler head directly over the cubicle involved here.

Plaintiff had been employed by defendant prior to March 24, 1960, as a night porter. According to the defendant's records the last night he had worked was March 21, 1960. Plaintiff testified that he had worked the night of the 23rd and early morning of the 24th of March, 1960. The duties of a night porter were to mop the lobby, clean the washrooms and patrol the hotel to see that there was no noise and no fires in the building. They were also instructed that if they saw a bulb larger than 15 watts in any cubicle they were to remove it and replace it with a 15 watt bulb. They were also to remove shades that might be on any of the lights. A maid was employed who had worked at the hotel for 5 years prior to the fire. Her duties were to make the beds and clean the cubicles. She worked every day except Sunday. It was also her duty to remove any light bulbs that were over 15 watts and to replace them with a 15 watt bulb and to remove any shades she might find on the bulbs.

On March 24, 1960, at about 10:00 a.m. a fire occurred in one of the cubicles on the second floor of the hotel, the third floor of the building. The fire started in the cubicle of a tenant by the name of Hendrickson. There was testimony that Hendrickson had used paper as a lampshade on the light bulb in his cubicle before the day of the fire and that this fact was known by defendant's employees. At the time of the fire, the maid had not yet reached the second floor in her daily cleaning duties, but was still working on the first floor. Plaintiff went to the cubicle where the fire was, kicked open the locked door and among other things tore a burning newspaper from around the light bulb with his bare hands and then trampled on the paper after he threw it to the floor. During this process his pants caught fire and he sustained burns to his hands and legs. The light, a 75 watt capacity bulb, was still on after the fire was extinguished.

Defendant's theory of the case is (1) that there was insufficient evidence for the jury to find defendant guilty of any negligence, (2) that plaintiff was guilty of negligence as a matter of law, (3) that the court erred in its rulings on the admissibility of certain evidence, (4) that the court erred in its rulings on certain instructions submitted to the jury, (5) that the jury's answer to a special interrogatory was against the manifest weight of evidence, and (6) that the verdict was excessive.

We disagree with defendant's first contention. There was sufficient evidence for the jury to find defendant guilty of negligence. There are five allegations of negligence contained in plaintiff's complaint and they read as follows:

1. Failed to provide lamp shades for the lights in the tenants' rooms when he knew said tenants were in the habit of placing makeshift lamp shades of combustible material on said lights in close proximity to the bulbs so as to create a danger of fire;

2. Suffered and permitted an exposed burning light bulb to be shielded with combustible material in such close proximity to the bulb as to create a danger of fire;

3. Failed to inspect said premises and to discover the presence of the said burning electric light bulb shielded with inflamable [sic] paper, and to ascertain whether the same was safe for the plaintiff and others invited into said premises as paying guests;

4. Suffered and permitted a tenant to remain in the hotel without providing him with permanent type lamp shades when it was known by the defendant that said tenant had placed combustible material in such close proximity to an exposed electric light bulb as to create a danger of fire;

5. Failed to maintain and have readily available a fire extinguisher in the area of and in close proximity to the area where said burning electric light bulb, shielded with paper, was located.

The fire in question occurred in the cubicle occupied by Hendrickson, when a newspaper which had been placed over the bulb, caught fire. Hendrickson was a permanent tenant of the hotel and occupied his cubicle for some months prior to the date of the fire. There was evidence that Hendrickson had used newspaper as a shade for the bulb on prior occasions, that this practice was known to defendant's employees and that defendant took no steps to remove Hendrickson as a guest in the hotel. There was also evidence that defendant's employees could enter the cubicles to inspect the premises and that defendant had knowledge that certain tenants were in the habit of placing makeshift shades of combustible material on the lights. The verdict of the jury was proper.

Defendant's second contention is that there was insufficient evidence to support the jury's finding that plaintiff was free from contributory negligence. It is true, as defendant points out, that the humanitarian doctrine applies only to persons attempting to save the life or secure the safety of another person. West Chicago St. Ry. Co. v. Liderman, 187 Ill. 463, 470, 58 N.E. 367 (1900), Divine v. Pfaelzer, 277 Ill. 255, 115 NE 126 (1917). Plaintiff testified that when he first saw the fire, he believed that Hendrickson was in the cubicle. It is also true that he testified that after he kicked the door in, he saw there was no one in the room. We feel, however, that it was reasonable for plaintiff, even after seeing no one was in the room, to jerk the blanket off the bed and tear the newspaper off the bulb in an attempt to put out the fire and that the jury could and did so find.

Defendant points out that two or three minutes elapsed from the time he knew that no one was in the room until he had put out the burning newspaper. This is only half true in that there was also evidence submitted, by plaintiff, that he was busy jerking the blanket off the bed, putting out the fire on the blanket, sheet and mattress, prior to tearing the newspaper from the bulb.

Defendant also points out that because plaintiff worked on the premises, he should have been aware of the fact that there was a fire extinguisher close to the cubicle. Again, the jury could have properly found that a reasonable man ...


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