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Tolman v. Wieboldt Stores

JULY 22, 1966.




Appeal from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding. Reversed — judgment for defendant.


Rehearing denied September 12, 1966.

This is an appeal from a judgment in favor of plaintiff and from an order denying defendant's motion for a directed verdict, defendant's motion for judgment notwithstanding the verdict and the order denying defendant's motion for a new trial. After a jury trial, a verdict and judgment for $10,000 was rendered for the plaintiff for injuries sustained on November 29, 1960, when plaintiff fell on an escalator in defendant's store. Defendant urges reversal on the theory that plaintiff failed to make out a prima facie case; that there was no evidence that defendant knew or should have known that the escalator was unsafe and that there is no competent evidence that the escalator was unsafe. In the alternative defendant urges certain trial errors as grounds for a new trial.

[1-3] Plaintiff introduced into evidence, over objection, two interrogatories propounded to defendant in pretrial discovery proceedings and defendant's answers thereto:

Interrogatory No. 1: For a five-year period prior to November 29, 1960, and while you were known as Mandel Brothers, or you operated, or had control of the escalator specified in the complaint, was anybody injured on said escalator by catching any part of their shoe, or tripping on the slats, or surface of the treads of said escalator?

The answer is: This defendant has no actual knowledge of any such circumstances. However, based upon hearsay evidence (sic), the answer to interrogatory No. 1 as it pertains to Mandel Brothers, Inc., the answer is yes. There is no record or information as to any such occurrences during the period of time this defendant was in possession and control of the involved premises and escalator thereon. No records are available prior to October 1, 1956.

Interrogatory No. 2: If the answer to the aforegoing is yes, state the name or names and address or addresses of the person or persons injured, the approximate date of injury, and the manner in which the injury occurred.

Answer to Interrogatory No. 2: Based upon hearsay information, the defendant lists the following names, addresses and dates relating to incidents which occurred subsequent to October 1, 1956, and during the period of time that the involved premises and escalator thereon was in possession and control of Mandel Brothers, Inc.: [The names and addresses of eleven women are listed.]

Answers to interrogatories may be used in evidence to the same extent as depositions of an adverse party. [Ill Rev Stats, 1959, c 110, § 101.19-11(4).] Discovery depositions may be used only as provided by Supreme Court Rule 19-10(2) [Ill Rev Stats, 1959, c 110, § 101.19-10 (2)]:

Discovery depositions may be used only (a) for the purpose of impeaching the testimony of deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness; or (b) as an admission made by a party or by an officer or agent of a party in the same manner and to the same extent as any other admission made by that person; or (c) if otherwise admissible as an exception to the hearsay rule.

The answers to the interrogatories clearly stated the defendant had no knowledge of prior accidents. The added information in the answers filed over a year after the incident was stated to be upon hearsay evidence "as it pertains to Mandel Brothers, Inc." There was no proof by plaintiff that this information or any knowledge of the eleven accidents came to the defendant prior to the incident. *fn1 The answers were not admissions, were not used for the purpose of impeachment and were not admissible as an exception to the hearsay rule. Therefore, the court committed serious prejudicial error in allowing the answers to be admitted into evidence.

No other evidence was introduced by which plaintiff sought to establish knowledge or notice to defendant. Plaintiff argues that there is an inference from the testimony of James Gunderson, defendant's witness, that the defendant knew of the dangerous, unsafe and outmoded condition of the escalator. This witness testified that he was Chief Engineer of defendant from the time they took over the store from Mandel Brothers on August 18, 1960; that he had worked for Mandel Brothers at various times from 1936 on; that he had the same duties after defendant took over as above; that he saw the escalator daily and that there had been no change in the treads since 1936. We cannot find in this evidence any basis for holding that the Chief Engineer's daily observation was proof of knowledge that the escalator was dangerous or unsafe. He was not asked about the eleven accidents mentioned in answers to the interrogatories although plaintiff, of course, had the clear opportunity to do so. Since we have held that these answers were not admissible, and since plaintiff chose not to question Gunderson concerning the accidents, she cannot maintain her argument that Gunderson must or should have known about the accidents. In regard to knowledge or notice as a prerequisite to liability, the court in Fier v. Chicago Orpheum Co., 295 Ill. App. 247, 14 N.E.2d 860 said at page 262:

Since there is no evidence in this record that tends to show that defendant had knowledge or notice of the claimed unsafe condition of the stage, plaintiff failed to prove the negligence charged against defendant and the latter's motion for a finding in its behalf should have been sustained.

So in the instant case we find no evidence, nor is there any inference from the evidence adduced, that the defendant had either notice or knowledge, actual or constructive, of the alleged unsafe condition of the escalator.

Plaintiff's complaint also charges that the defendant negligently permitted the escalator to be old, outmoded and unsafe in that (1) "the surface of the said escalator was equipped with wooden slats which were spaced far enough apart so that the heel of a woman's shoe was likely to be caught between the said slats thereof and thereby said person caused to lose her balance in attempting to remove the heel of her shoe so caught or forced between the space of the slats thereof," and (2) the escalator "was not the type used as a matter of custom, practice and usage by retail department stores in the loop district of the City of Chicago, or by the said defendant in other parts of its said store described as aforementioned; that it was the general custom, practice and usage at the said time of retail department stores in the loop district of the City of Chicago, including the aforementioned store of the defendant in divers other portions of the said store, to maintain and have in use escalators the surface of which was equipped with steel ridges placed close enough together so that the heel of a customer's shoe could not be caught between the spaces of the said ridges."

[5-8] Plaintiff, the only occurrence witness, testified:

I got on the escalator from the basement going to the first floor. I held the hand rail on the right side. This rail was going up. The rail on the left side was stationary. The treads were wooden slats spaced apart between 3/4 and 1 inch. The space between each slat was about 1 inch deep. *fn2

I went up the escalator about one fourth and realized the heel of my left shoe was caught between the slats. I tried to get it out, I tried to shake my foot, but I couldn't get it loose. I was getting to the top. I gave my foot a violent shake. My foot slipped out of the shoe. I fell backwards on my back.

I bought these shoes about 9 months before at the same store [then owned by Mandel Brothers].

I assume that it was the bottom portion of the heel on my left shoe that caught.

She further testified that defendant had other escalators which had a metal tread and ridges about a quarter of an inch apart; *fn3 that she saw and used escalators similar to those in other loop stores, including Field's and Goldblatt's. In a three-month period prior to this she did not see an escalator in any other store in the loop similar to the one she fell on. From this evidence plaintiff argues that the escalator was old, outmoded and unsafe. While we do not consider this evidence sufficient to establish a custom, we nevertheless refer to Turner v. Chicago Housing Authority, 11 Ill. App.2d 160, 136 N.E.2d 543, where the court stated at page 165:

While evidence of a deviation from customary practice is admissible and may be considered by the jury along with the other evidence in the case tending to indicate negligence, it is not, in itself, proof of negligence and cannot, standing alone, sustain a recovery. Peterson v. Feltenberger, 102 Pa Super 6, 156 A 621. So, in the instant case, a showing that the construction of the stairs was not standard is not enough. It must be shown that the deviation from the standard resulted in an ...

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