Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. FRED J. KULLBERG, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.
A suit was instituted by the plaintiff, a tenant, against defendants as his landlord, to recover damages for personal injuries sustained when the plaintiff fell on a ridge of ice and snow in a parking lot provided for the occupants of the defendants' 48-apartment building. Trial by jury resulted in a verdict for plaintiff in the amount of $4,000. Defendants appeal from the judgment entered on the verdict. No question is raised on the pleadings.
Defendants raise as issues, whether the plaintiff was guilty of contributory negligence as a matter of law; whether defendants were guilty of negligence as a matter of law; and whether the jury was properly instructed.
On December 15, 1964, at 11:00 o'clock p.m., after parking his car in a parking space, the plaintiff was injured while alighting from his car. In so doing, he stepped from the driver's side of his car onto a built-up ridge of ice and snow, causing him to fall and severely fracture his left leg. The space into which he drove his car was bare, evidently because another car had previously been parked there for some time.
The plaintiff and his daughter provided the only description of this built-up area of ice and snow. The plaintiff's very brief account of his fall described how he slipped off a ridge of snow covered with ice. His daughter examined the area the afternoon following the accident and testified that she observed a 5 to 6-inch ridge of snow and ice along the left side of her father's parked car, still located in the position it had occupied the evening before.
Three persons who had rendered immediate aid to the plaintiff after his fall, furnished no information about this snow and ice accumulation. The defendant and an employee, Mr. Ebert, testified they felt the lot was cleared of snow and ice "as much as possible," by a snow plowing operation performed by Mr. Reali on December 5, 1964. This date was ten days prior to the plaintiff's fall. Defendant, Alfred Block, conceded in his testimony that he was at the parking lot every day between December 5th and December 15th; that water and moisture drained to some extent from the surrounding higher ground to the east down into the parking lot; that on December 15th there were spots in the lot where the snow melted "and it might have been frozen." He testified to some snow being left on the lot after the plowing.
Meteorological records revealed that a series of snowfalls ended on December 5, 1964, and as of that date the snow on the ground in the Rockford area measured eight inches. There had been no appreciable snowfall in the intervening 10 days, but warming weather and resultant thawing had reduced the ground snow cover to one inch by December 15, 1964. Defendant, Alfred Block, testified that in the interval between December 5th and December 15th there was a thaw and freeze which formed ice all over town.
In describing the manner in which he normally cleared the defendants' lot, Mr. Reali stated he used a plow to push the snow into a pile in the center of the lot. The parking lot surface was crushed stone, and although dry wells had been installed, the drainage pattern was not depicted. Cross-examination of Reali and Ebert concerning the plowing procedure employed, reflected that if a parking stall was occupied by an auto at the time of plowing, the operator would simply plow around this parked car.
Although the snowplow was sketchily described, it is a fair inference from the record that the spillover of the snow as the plow skirted the parked car would have increased the depth of the snow at that location.
Turning first to the defendants' contention that the plaintiff was guilty of contributory negligence as a matter of law, we note that the plaintiff admitted having two highballs after he left work at 10:30 p.m., after which he drove home and parked in the defendants' lot. The plaintiff later told the hospital intern that he had consumed "several" drinks before he fell. The defense contended that because the plaintiff used the word "several" in another context as denoting a number as high as "4," this point lends support to their theory that the plaintiff was intoxicated at the time of the occurrence. The defendants further contend that the court erred in refusing to give defendants' instruction number 8, which is IPI number 12.01.
The basis for tendering this instruction can only be drawn from the plaintiff's admission that he had had two drinks, plus the testimony of defendants' witness Gary Boetcher. This witness testified that he helped plaintiff Sims into Boetcher's car and together with two other men, drove the plaintiff to the hospital. Boetcher smelled alcohol on the plaintiff's breath, and while in the parking lot, had noted the plaintiff's conversation "wasn't too clear."
The defendants did not inquire whether this witness held an opinion as to the plaintiff's state of sobriety or intoxication. Although the burden is on the plaintiff to prove his due care, when, as here, defendants seek to refuse this claim by proving that the plaintiff was in fact intoxicated, they must do more than to simply show the plaintiff had been drinking.
The conversation in the parking lot occurred after the plaintiff had sustained a severe and painful injury. Therefore, under these circumstances we are not impelled to equate this single factor, i.e. lack of clarity of conversation, with intoxication. There must be proof of an impairment of mental and physical facilities with the resultant diminution in the ability to think and act with ordinary care. Shore v. Turman, 63 Ill. App.2d 315, 322, 210 N.E.2d 232 (1965); Kitten v. Stodden, 76 Ill. App.2d 177, 180, 221 N.E.2d 511 (1966). These cases hold that "drinking, standing alone, cannot be equated with intoxication," where the fact of intoxication is not itself the ultimate issue. We believe this rule is applicable in the instant case, and where, as here, the defendants introduce insufficient evidence to warrant the giving of the intoxication instruction, the court may properly refuse it.
The defendants contend that the evidence demonstrates contributory negligence as a matter of law. However, we hold that the plaintiff was not negligent as a matter of law. It is not negligence per se to go upon dangerous premises. Considering the evidence and the reasonable inferences to be drawn therefrom, as we must, we cannot say that all reasonable minds would agree that plaintiff was guilty of contributory negligence. The question of contributory negligence was properly one for the jury to decide. Fitzsimons ...