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Sterba v. First Fed. Sav. & Loan Ass'n

DECEMBER 29, 1966.

STEVEN J. STERBA AND DELORIS M. STERBA, PLAINTIFFS-APPELLEES,

v.

FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF ELGIN, AN ASSOCIATION OF THE UNITED STATES OF AMERICA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. CHARLES G. SEIDEL, Judge, presiding. Judgment adverse to defendant affirmed.

MR. PRESIDING JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.

A jury found in favor of the plaintiffs and from a denial by the trial court of defendant's motion for a directed verdict and/or for a judgment non obstante veredicto, the defendant appeals.

For the purpose of this appeal it will be necessary to refer to only one plaintiff, Deloris M. Sterba, and the sole question to be answered is whether the plaintiff was guilty of contributory negligence as a matter of law.

The factual situation is not controverted. The defendant, First Federal Savings and Loan Association of Elgin, owned and occupied the main floor and basement of its building. It leased the second floor to other tenants. Immediately west and adjacent to the building it operated a parking lot attended by one Milton McNabney, one of its employees. The lot was reserved for customers of both the defendant and its tenants. On the parking lot was a sentry type hut used by McNabney during inclement weather. The lot was composed of 15 parking spaces, one of which was located between the hut and the northwest corner of the building. This space, on its east end, was equipped with a cement collar or bumper which was attached to the ground. The bumper was two feet from the building; and ran parallel to it. From 9:00 o'clock a.m. to 5:00 o'clock p.m., the defendant had McNabney park his own automobile in this particular space.

A wooden awning, used to shield the sun from shining through the sole window, was attached to the hut. This awning protruded outward about two feet from the hut. The defendant testified that the bottom of the awning was approximately five feet nine and one-half inches from the ground.

The plaintiff had on prior occasions used the lot about six times a year. The previous visits were for the purpose of delivering her mortgage payments to the defendant or to visit the defendant's tenants. On these former visits she was always met in the middle of the lot by the attendant who would give her a ticket and upon her return with the stamped ticket she would again be met by the attendant who would collect the ticket. She testified that on former occasions there was always the attendant's car parked in this one space and she never had occasion to walk near the building.

On April 25, 1963, the plaintiff, whose height was between five feet seven inches and five feet eight inches, parked her car in defendant's lot for the purpose of visiting one of defendant's tenants on business. She entered the building from the northwest corner at about 5:10 p.m. Shortly thereafter, she emerged from the same entrance, walked around the corner, "possibly stepped over it" (the cement bumper), proceeded through the parking space usually occupied by the attendant, and her head came in contact with the awning over her left eye and temple. She was rendered unconscious. From the time she rounded the corner of the building to the time she had struck her head, she had taken four or five steps. She testified that it was a clear day; that there was nothing to obstruct her view in front of her; that she was not carrying anything; that she was not in any particular hurry nor was she walking hurriedly; that she did not recall in which direction she was looking as she rounded the corner other than probably toward her car, which was beyond the hut and that she did not trip or fall over anything. Since the accident, the defendant has replaced the wooden awning with a canvass awning.

The defendant's President, called under section 60 of the Civil Practice Act (c 110, § 60, Ill Rev Stats 1963), testified as follows:

"Q. Now, what other parking spaces were there aside from the twelve lined up facing south?

"A. We have two parking spaces on the north part of the lot and one in front of the building, and this was done with sort of a protective . . .

"Q. Go ahead.

"A. . . . for a protection for just the type of thing that happened here now."

And, later he gave the following testimony:

"Q. Thank you. Did your association have any warning signs near the shanty there to warn customers? Were there any ...


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