Appeal from the Circuit Court of Cook County, Law Division;
the Hon. ABRAHAM W. BRUSSELL, Judge, presiding. Judgment
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
Rehearing denied and supplemental opinion November 26, 1968.
This is a wrongful death action. The plaintiff, as administrator of the estate of Otis S. McInturff, deceased, sought to recover damages allegedly caused by the negligent conduct of the defendants, William Forbrich, Milton J. Holloway, and Chicago Title & Trust Company, individually, and as trustee under certain trusts, in maintaining a stairway in a building in which the decedent worked as janitor. By amendment, the plaintiff also sought to recover for the funeral expenses of the decedent.
The Chicago Title & Trust Company, as Trustee, held record title to the property in question, and Forbrich and Holloway were beneficiaries under the Trust.
The jury, in the wrongful death action, rendered a verdict of $30,000 for the plaintiff and against Forbrich and Holloway, and awarded no damages for funeral expenses. Judgment was entered on the verdicts and Forbrich and Holloway, herein called the defendants, appealed.
The complaint alleged, and the answer denied, that the decedent was in the exercise of ordinary care at and immediately prior to the time when the occurrence in question took place; that as a proximate result of the defendants' negligence, the decedent did fall on the stairway and so came to his death; that the defendants maintained a stairway without handrails, as required by pertinent municipal ordinances; and that the stairway was unreasonably and dangerously steep and worn. The answer also set forth an affirmative defense that the action was barred by the payment of Workmen's Compensation to the plaintiff pursuant to the pertinent provisions of the Workmen's Compensation Act (Ill Rev Stats 1957, c 48, pars 138.1-138.28). The defendants moved for a directed verdict at the close of the plaintiff's case and at the close of all of the evidence. Each motion was denied.
The defendants' post-trial motion asked the court to set aside the jury verdict, to arrest the judgment and to enter judgment for the defendants notwithstanding the verdict. It also raised the defense that the action was barred by payment as aforesaid, asserted that it was error for the trial court to refuse to direct a verdict for the defendants, and designated many other alleged errors in connection with the trial. However, we believe that the negligence-proximate cause issue is dispositive of the case and the other alleged errors need not be considered.
In April of 1956, the decedent was hired by Chatain & Company as janitor of the apartment building in question. Chatain & Company was the managing agent of the building on behalf of the defendants and paid wages to the decedent for his services. On December 27, 1958, while so employed, he came to his first-floor apartment from the basement where he had been sweeping and asked his wife whether they had any bandaids. She directed him to the medicine chest in the bathroom and he went in that direction.
Shortly thereafter, Mrs. McInturff heard a crashing sound outside the apartment door. She went to the front entrance, opened the basement door which was slightly ajar, and saw her husband lying at the foot of the stairs with his head and shoulders on the concrete floor and his feet and legs on the basement stair. He was pronounced dead upon his arrival at the hospital.
As janitor, it was the duty of the decedent to maintain the building, take care of the furnace and the hot water heater, and report to Chatain & Company anything required in connection with the building. He also made small, emergency-type repairs. He used the stairway daily in the course of his employment. Mr. Chatain occasionally accompanied the decedent to the basement.
There were thirteen steps in the stairs. The risers on the stairs were eight inches high and the treads were worn. The railing on the left side of the stairway began seven steps from the top and there was no railing on the right side. The stairs were part of the original building which was constructed in 1897.
There was testimony that the decedent kept the stairs clean; that he was a careful man; that he had lost fifteen pounds since the summer of 1957; that he was admitted to the hospital on July 16, 1958, and prior thereto was complaining about blood in the urine; and that he had been absent from work for about six weeks during the latter part of 1958, due to an operation for a malignant tumor of the kidney. There was no evidence relative to what took place prior to and at the time of the injury in question.
Testimony of the surgeon who performed the operation, and that of other physicians, indicated that a man with one kidney is capable of living an ordinary life; that a person with cancer has a life expectancy of from five to ten years, at the most, dependent upon numerous factors.
[1-5] It has long been the law that ordinary care in a particular case is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances; that a person has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the exercise of ordinary care; that a failure to see what is clearly visible is not such conduct as is compatible with due caution for one's own safety; that damages cannot be assessed upon mere surmise and conjecture as to what possibly happened to cause an injury; that the law requires affirmative and positive proof of actionable negligence as the proximate cause of the injury or damage suffered to warrant an assessment of damages; and that the causal relation between the alleged negligence and ...