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Tolman v. Wieboldt Stores

OPINION FILED NOVEMBER 30, 1967.

IDA TOLMAN, APPELLANT,

v.

WIEBOLDT STORES, INC., APPELLEE.



APPEAL from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of MR. CHIEF JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 18, 1968.

The plaintiff, Ida Tolman, brought suit in the circuit court of Cook County against the defendant, Wieboldt Stores, Inc., for injuries allegedly received when the heel of her shoe became caught in an escalator owned and operated by defendant. Plaintiff received judgment for $10,000 after a jury verdict, and defendant's post-trial motions were denied. The appellate court, with one judge dissenting, reversed and entered judgment for defendant. (73 Ill. App.2d 320.) We have granted leave to appeal.

The incident occurred on November 29, 1960, in a Chicago Loop store owned and operated by defendant. The only occurrence witness was the plaintiff who testified that she got on the escalator in the basement going to the first floor and held the hand rail on the right side. She testified that the treads on the escalator were wooden slats spaced apart between three-quarters and one inch, and the space between the slats was one inch deep. About a quarter of the way up the heel of her left shoe became caught between the slats. She was unable to dislodge the shoe, and upon nearing the top, she gave her foot a violent shake, her foot slipped out of her shoe and she fell backwards and incurred injuries. She testified that the width of her heel was between a quarter and a half inch.

It further appears from the evidence that no changes had been made in the width or height of the treads on this escalator since at least 1936. Defendant purchased the store from Mandel Brothers on August 18, 1960. Photographs of the escalator in question were introduced in evidence without objection. Plaintiff also introduced, over objection, photographs of other escalators in defendant's store and one in Goldblatt's showing narrowly spaced metal slats. Also introduced, over objection, was a photograph of a new escalator with metal slats which was installed after the occurrence to replace the escalator on which plaintiff was injured. This picture also discloses a large painted sign on the adjacent wall, the visible part of which reads: "NEW ESCALATOR to the Subway Store, SWIFT • SMOOTH • SA ____."

Plaintiff also introduced into evidence, over objection, two interrogatories and answers propounded in pretrial discovery. They read as follows:

"Interrogatory No. 1: For a five year period prior to November 29, 1960, and while your assignor, Mandel Bros. or you operated or had control of the escalator specified in the complaint, was anyone 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 foregoing 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 were listed.)

On appeal from the judgment of the trial court, defendant contended that there was no evidence, either that the escalator was unsafe or that defendant knew or should have known that the escalator was unsafe. In the alternative, it urged numerous errors as grounds for a new trial.

The appellate court reversed, holding that there was no evidence of either notice or negligence and that a verdict should have been directed for the defendant. Justice McCormick, dissenting, expressed the opinion that since plaintiff was a passenger on a common carrier, the mere happening of an injurious accident raises a prima facie presumption of negligence, requiring defendant to rebut the presumption by showing extraordinary care.

Both parties have proceeded on the assumption that plaintiff was a passenger on a common carrier at the time of her injury. However, plaintiff reasons from this assumption that the accidental injury of such a passenger gives rise to a presumption of negligence, sufficient to establish a prima facie case. This view finds support in cases dating back to Lord Mansfield's decision in Christie v. Griggs, 2 Camp. 79, (1809) 170 Eng. Rpts. 1088. The doctrine was recognized in Illinois in 1854 in Galena and Chicago Union Railroad Co. v. Yarwood, 15 Ill. 468, 471, where the court stated: "By the law they (the common carrier) are bound to the utmost diligence and care, and are liable for slight negligence. Proof that (plaintiff) was a passenger, the accident, and the injury, made a prima facie case of negligence. This is done and the burden of explaining is thrown upon the (defendant)."

In New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 Ill. 40, 48-49, the court said: "The happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier his been negligent. The burden of rebutting this presumption rests upon the carrier. Undoubtedly the law requires the plaintiff to show that the defendant has been negligent. But, where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident. If the injury to a passenger is caused by apparatus wholly under the control of the carrier and furnished and applied by it, a presumption of negligence on its part is raised. (Gleeson v. Virginia Midland Railroad Co., 140 U.S. 435; Miller v. Ocean Steamship Co., 118 N.Y. 199; Galena and Chicago Union Railroad Co. v. Yarwood, 15 Ill. 468, and 17 id. 509; Chicago City Railway Co. v. Engel, 35 Ill. App. 490; Pittsburg, Cincinnati and St. Louis Railway Co. v. Thompson, 56 Ill. 141; Eagle Packet Co. v. Defries, 94 id. 598; North Chicago Street Railway Co. v. Cotton, 140 id. 486.) Proof that plaintiff was a passenger, that the accident happened, and that the injury was inflicted, imposes upon the carrier the duty to explain or account for the accident, and to prove that it resulted from a cause for which the carrier should not be held responsible. (Railway Co. v. Engel, supra; Railway Co. v. Thompson, supra.) The circumstances of exculpation are its matter of defense. Gleeson v. Railroad Co., supra.

"Here, an injury was proven to have happened to a passenger while descending from a train of appellant's cars in the manner and under the circumstances already stated. We think that a prima facie case of negligence was made out, sufficient to throw upon appellant the burden of proving that the injury was not its fault. Whether or not the defendant offered such explanation of the accident as to relieve itself from the charge of negligence, and whether or not the plaintiff exercised due ...


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