Appeal from the Circuit Court of Cook County; the Hon. THOMAS
H. FITZGERALD, Judge, presiding. Judgment affirmed.
MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.
Plaintiff brought this wrongful death action to recover damages caused by the death of Seymour Golden, plaintiff's intestate. The jury returned a verdict for plaintiff in the amount of $20,000, upon which verdict the court entered judgment. Defendant filed a post-trial motion asking for judgment notwithstanding the verdict, or, in the alternative, for a new trial. The court overruled the post-trial motion in its entirety, and it is from that order that defendant appeals. No questions are raised on the pleadings.
Defendant's theory is that there was no evidence in the case showing that defendant was guilty of negligence or that plaintiff's intestate was free from contributory negligence. In the alternative, it is defendant's theory that he should be granted a new trial because of the court's error in instructing the jury and in refusing to give the jury a special interrogatory on the question of Seymour Golden's contributory negligence. Defendant also contends that the jury's verdict was against the manifest weight of the evidence and was based on a capricious compromise.
Seymour Golden operated a dry goods store known as the Friendly Store at 2309 West Madison Street, Chicago, Illinois. Immediately East of the Friendly Store, the defendant operated the Big Bear Food Store; both stores were on the South side of Madison Street and were separated by a common wall. Behind both stores was an alley which ran in an East and West direction, and in this alley, at a point where the two stores were joined by the common wall, there was an incinerator. The location of the incinerator was such that its midpoint was near the common wall so that about half of the incinerator extended East of the common wall and half of it extended West of the common wall. The incinerator was owned and maintained by the defendant for the purpose of burning garbage and trash accumulated in the operation of the Big Bear Food Store. Located above the Friendly Store were several vacant apartments, previously rented to various tenants. In June, 1959, there was a fire in these apartments, and the tenants were forced to vacate the premises. At the time of this fire, the incinerator was damaged to the extent that it could not be operated, and the manager of the Big Bear Food Store was instructed by a Fire Department official not to use it. The manager then instructed employees of the store not to use the incinerator.
At about 6:00 p.m., on August 6, 1960, Seymour Golden was in the Friendly Store when smoke was noticed coming from the rear of the store. He ordered Curtis Wright, a handyman, to determine what the cause of the smoke was. Wright went to the alley and observed several boxes burning on top of the incinerator, and that flames from the burning boxes had ignited boards over a boarded up window of the Friendly Store. Plaintiff, who was also in the store, called the Chicago Fire Department. Prior to the arrival of the Fire Department, the smoke coming from the rear of the store was heavy, and flames began to appear. There was a balcony in the rear of the store which was used for storage, and among the items stored there were inflammable items such as paints and varnish. Smoke appeared to be coming from the balcony, and Seymour Golden went up onto this balcony with a hand operated fire extinguisher and attempted to put out the fire. While on the balcony, he was overcome by the smoke and collapsed. At this time, the Fire Department arrived and helped Curtis Wright remove Seymour Golden from the danger area. Seymour Golden was pronounced dead upon arrival at County Hospital. The cause of his death was smoke inhalation.
The issues presented for review are: (1) whether there were sufficient facts or circumstances from which the jury could infer negligence attributable to the defendant; (2) whether the deceased, Seymour Golden, was guilty of contributory negligence as a matter of law; and (3) whether the trial court committed error in refusing to submit to the jury, defendant's special interrogatory.
First, we are called upon to consider several aspects of the evidence presented at the trial. The record discloses that the case was tried on the theory of circumstantial evidence, and the defendant assails the verdict on the grounds that there was no evidence presented identifying any agent or servant of the Big Bear Food Store as having set the fire, nor any evidence of negligence in the maintaining of the incinerator. Plaintiff presented several witnesses at the trial, and relevant portions of their testimony was as follows:
Captain Grabalowski, Chicago Fire Department:
"Q. Now, officer, after you are back out in the alley, could you tell the Court and Jury what, if anything, you observed on the incinerator or in close proximity to the incinerator?
"A. Well, the remains of a lot of burned paper, cardboard wooden boxes.
"Q. And what kind of boxes were they?
"A. They had been used for food products, produce, egg cartons, that type of thing.
"Q. And where were those cartons and boxes located?
"A. All behind the Big Bear Food Mart.
"Q. You mentioned ashes. Where were the ashes located?
"A. In the incinerator, around the incinerator, on top of the incinerator. . . . there had been a fire in it. It had been extinguished and it was still warm. . . . The boxes behind the Big Bear Store that I saw were all around and in front of the incinerator. . . . Some had burned and some had not."
Frank Szwedo, Chicago Police Department:
". . . Q. All right. What else did you observe, if anything, at the time you went to the incinerator?
"A. Well, there was a lot of trash in the alley.
"Q. And where was that trash located?
"A. Well, all over the alley, covering both sides of the alley around the incinerator, just general litter.
"Q. Would you tell us what type of trash you observed when you got back into the alley at the time you had indicated?
"A. Well, it was mostly boxes and crates, things that a grocery store would have, cardboard boxes and wooden crates. . . .
"Q. At the time you were back in the alley, what, if anything, did you observe about the incinerator?
"A. There was a smokey substance emitting from the incinerator and I said it was either steam or smoke. And in and around the incinerator was a lot of trash accumulated, burnt material."
Curtis Wright, decedent's handyman:
". . . Q. All right. What if anything after you noticed this smoke did you do?
"A. I went around the back to see what had happened.
"Q. Who sent you out to the back?
"Q. When you got out to the back, what if anything ...