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Meiners v. Moyer

JANUARY 22, 1970.

CURT WAYNE MEINERS, A MINOR, BY JERRY MEINERS, HIS FATHER AND NEXT FRIEND, PLAINTIFF-APPELLEE,

v.

MAY MOYER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County, Seventeenth Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge, presiding. Affirmed.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Curt Wayne Meiners, a minor, when age 18 months and while in the custody of a baby-sitter, was injured when he fell from the inside front stairs of a two-family apartment house owned by the defendant, May Moyer. Defendant appeals from a judgment entered on a jury verdict awarding plaintiff $3,500 damages and an additional $3,500 in punitive damages.

Defendant claims error in denying her motions for a directed verdict during trial and her post-trial motions. The errors relied upon include claims that the evidence is insufficient, the form of verdict is improper and not supported by the pleadings or the evidence, the instructions are improper, and the judgment is excessive.

On August 16th, 1967, Jerry and Dorothy Meiners, the parents of Curt, resided across the street from the place of the accident. Virginia Henson, the daughter of a Mrs. Smith, who lived in the defendant's upstairs apartment, was used by the Meiners as a "baby-sitter" approximately three times a month during the nearly six months the Meiners had lived in the neighborhood. On the day of the injury, Curt was taken to the Smith apartment to be cared for by Virginia Henson.

Miss Henson had lived in the Moyer building for approximately three and one-half years with her family. She testified that balusters on the stairway, as shown in a photographic exhibit, had been missing since she moved in. She testified to several conversations between her mother and defendant's agent in which her mother asked if "he would please fix them." She had observed storm windows stored in the stairwell at the bottom of the stairway over a period of a year or more. On the day in question, Curt was playing with Virginia Henson's sister in the living room of the Smith apartment until a few seconds before Virginia heard her young brother, who had also been in the apartment, screaming her name. She ran out and then saw Curt lying at the bottom of the stairs on the broken glass.

Virginia Henson's sister and brother were too young to relate what happened.

Curt's father testified that on occasions prior to his arriving after the accident, when he had been in the Moyer apartment house, he had always gone up the back steps. He testified that after his son was taken to the hospital, he noticed that there were no balusters on the front stairway leading from the second floor, and he also testified to the broken storm windows.

There was evidence that the city of Rockford had made inspections of the property which had resulted in a notice to Mrs. Moyer that the property had been condemned on June 13th, 1967, as unfit for human habitation. The notice ordered the premises vacated within thirty days. The agent of the city of Rockford, who delivered the notice, recalled that the balusters were missing. He did not note this in his inspection report, nor did he note that the storm windows were stored in the stairwell.

The treating physician testified to injuries consisting of two lacerations to Curt's scalp and a laceration of the volar surface of the left, fifth finger; that scars to the child's forehead would be permanent but would not require plastic surgery; and that as of the date of the trial, March 17th, 1969, the finger did not close completely.

While there was conflicting evidence, we are of the opinion that the evidence favorable to the plaintiff supports a verdict that defendant was guilty of both negligence and willful and wanton misconduct in permitting the stairway to remain in a dangerous condition, and permitting the storage of the storm windows in a place where a fall through the space left by the absence of a baluster could proximately result in injury to a child.

Defendant urges that on the issue of proximate cause the case of McInturff v. Chicago Title & Trust Co., 102 Ill. App.2d 39, 243 N.E.2d 657 (1968) is controlling. We do not agree. In McInturff the plaintiff's evidence, including facts and circumstances and the inferences to be drawn therefrom, did not more strongly support her theory of recovery than it supported inferences to the contrary. The circumstances in this case strongly support the conclusion that the only manner in which Curt could have fallen was through the open balusters onto the storm windows. Holsman v. Darling State Street Corp., 6 Ill. App.2d 517, 523, 128 N.E.2d 581 (1955); Thomas v. Smith, 11 Ill. App.2d 310, 316, 137 N.E.2d 117 (1956).

Defendant challenges the form of the verdict as submitted to the jury:

"We, the jury find the Defendant guilty and assess the Plaintiff's damages against said defendant at the sum of $____ dollars, and we further assess punitive damages against ...


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