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Phillips v. Shell Oil Co.

JULY 20, 1973.




APPEAL from the Circuit Court of Madison County; the Hon. HARRY L. ZIEGLER, Judge, presiding.


Rehearing denied August 22, 1973.

This is an appeal from a judgment of the Circuit Court of Madison County, in an action brought by appellant Phillips against appellees Wehmeyer and the Shell Oil Company, charging that their negligence in the design, maintenance and operation of a service station resulted in injury to her.

The action was commenced by the filing of a complaint of March 3, 1965. The case was brought to trial in October of 1970. The jury at the conclusion of the evidence returned a verdict in favor of the plaintiff and against both defendants in an amount of $10,000. The jury, however, replied in the affirmative to a special interrogatory which asked, "Do you find from the evidence that at and immediately prior to the occurrence in question the plaintiff was guilty of any contributory negligence which was a proximate cause of said occurrence?" The court entered judgment in favor of the defendants notwithstanding the verdict on the basis of the answer to the special interrogatory. From the judgment, the plaintiff has brought this appeal.

The plaintiff, on April 1, 1964, came into the Shell Service Station on U.S. Highway 66 at Hamel. She was there to purchase the goods and services of the station. The station was designed by the defendant company and was operated by defendant Wehmeyer. The plaintiff was accompanied by her sister, her son and a friend of her son. The weather was clear and the sun shone.

The station itself faced south with the office area on the right side of the station and the garage, or bay area, on the left. The plaintiff and her sister entered the office area while the son and friend stayed with the auto to get it serviced.

Upon entering the station, the plaintiff noted a soda machine to her left and she and her sister decided to have a soda. When the plaintiff took out the soda, she was in front of the machine and facing west (towards the bay area). She did not look into the bay area although there was nothing to prevent her from so looking. She was aware that there was a bay area. The plaintiff next stepped to her left around the machine with her back to the front doorway which was in a held-open position. As the plaintiff stepped sideways to allow her sister to open a soda, the plaintiff stepped down a four to six inch step and fell, sustaining a fractured hip. She was facing the back of the station with her left side to the step. She did not look where she stepped. There was no obstruction to prevent her from seeing the step. The plaintiff at the time of the accident was fifty four years old with no defect in her eyesight.

The step, or drop off, extended the entire width of the station and was located at the separation of the office area and the bay area. There was no wall or partition along the step, but there was placed alongside the step the soda machine and various other display counters both in the office side and the bay side so as to form a sort of partition between the two distinct areas of the station. There was left open in the partition a walkway two and one half to three feet wide between the soda machine and the front doorway where the plaintiff fell. The floor of the inside of the station was painted the same gray color throughout. There was no defined doorway between the two areas and there was no guard rail or handrail, nor were there any warning devices or indicators of the step. The station was constructed according to the plans and specifications furnished by defendant Shell.

Plaintiff incurred $5291.08 of expense in the form of hospital bills, doctor bills and various associated medical expenses in the care and treatment of injury.

After her fall, the plaintiff was taken to Staunton Hospital where she underwent an operation wherein the hip was "pinned". This operation was not successful and she was taken to Lutheran Hospital in St. Louis, Missouri, where she was once again operated upon approximately one week after the first operation. This second operation involved removing the nail and plate that had been placed in the hip in the first operation and in lieu thereof placing a key nail and two Knowles pins. Subsequently there was a third operation performed on the hip. Medical testimony indicated that because of the accident there was muscle weakness in the hip and that the plaintiff would have a permanent limp and that it was likely that she would require future medical treatment.

The plaintiff has in this appeal urged several specific points for reversal and they each shall be considered in the order presented.

The trial court excluded from evidence the testimony of Ronald L. Eilering, a registered and practicing architect in the State of Illinois. In a hearing outside the presence of the jury, the plaintiff elicited testimony of Mr. Eilering's qualification and his opinions concerning the defects of the design of the station including not only the location and identification of the step, but also the location of the "door". The trial court at the conclusion of the hearing stated: "Although I find that he could testify as an expert, I think that it wouldn't help the jury. So we are not going to qualify him as a witness". The plaintiff, as her first point for reversal, contends that the trial court abused its discretion in excluding the offered testimony of a qualified expert witness.

• 1-3 The admission of expert testimony and the qualification of an expert witness is generally left to the discretion of the trial judge. (Park District of Highland Park v. Becker (1965), 60 Ill. App.2d 463, 208 N.E.2d 621; Evanston Best & Co. v. Goodman (1938), 369 Ill. 207, 16 N.E.2d 131.) The general rule is that expert testimony is admissible when the subject matter is of such character that only persons of skill and experience in it are capable of forming correct judgments as to any facts connected therewith. (Schneider v. Kirk (1967), 83 Ill. App.2d 170, 226 N.E.2d 655; Nystrom v. Bub (1962), 36 Ill. App.2d 333, 184 N.E.2d 273.) Expert testimony on matters of common knowledge is inadmissible. (Hayes v. Place, 350 Ill. App. 504, 113 N.E.2d 178 and cases cited therein.) While there is a trend to admit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation (Miller v. Pillsbury, 33 Ill.2d 514, 211 N.E.2d 733), we cannot say whether the location and identification of a step and the location of a door are hazardous, is sufficiently complicated or difficult of comprehension and explanation, to hold that a trial court who heard the testimony, abused its discretion by denying expert testimony on the subject. We must determine, therefore, whether the physical factors involved in the location of a step are matters of common knowledge.

• 4 A case involving the location of steps and the question of whether this is a proper subject for expert testimony is Blackburn v. Tombling (1960), 148 Col. 161, 365 P.2d 243. (See also Chick v. Gilcrist (1911), 208 Mass. 183, 94 N.E. 276; Burton v. Horn & Hardart Baking Co. (1952), 371 Pa. 60, 88 A.2d 873, 63 A.C.2d 731.) In that case an architect testified that the location of certain steps in the defendant's doorway constituted a dangerous condition. The Supreme Court of Colorado, en banc, determined that such testimony was error, stating: "There is no need for expert opinion with reference to facts involving commonplace occurrence." We cannot state that the subject matter of the location of the step in the present case "is of such character that only persons of skill or experience in it are capable of forming a correct judgment as to any fact connected ...

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