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Perminas v. Montgomery Ward & Co.

SEPTEMBER 7, 1973.




APPEAL from the Circuit Court of Cook County; the Hon. DAVID A. CANEL, Judge, presiding.


Mr. JUSTICE ENGLISH delivered the opinion of the court:

By his complaint, based on a negligence theory, plaintiff sued for the recovery of damages for personal injuries suffered as a result of a fall which occurred in one of defendant's department stores. After a bench trial, judgment was entered in favor of plaintiff in the amount of $85,000. Defendant now raises three contentions on appeal: (1) the evidence presented at trial did not establish a prima facie case on the issue of defendant's negligence; (2) the trial court erred in refusing to permit defendant to introduce a certain exhibit; and (3) the amount of the judgment was excessive.

The testimony at the trial was as follows:

Adam Perminas, plaintiff, in his own behalf:

On May 31, 1966, at about 4:00 P.M., he and his wife arrived at defendant's store, first shopping on the upper floors and then going to the basement. His wife stayed in the women's clothing department in the front section, while he went to the housewares department in the rear. There were not many people in the area where he was shopping. The lighting was bright, and he was wearing his glasses. He was walking down an aisle in the paint section, looking at various merchandise displays, when he stepped on an object and both feet went out directly in front of him. He fell on his buttocks, bracing himself with his elbows behind him to try to keep his head from hitting the floor. (His head probably did hit the floor, because he later noticed a bump on his head which he showed to the doctor.) He did not see the object which caused his fall until after he fell, at which time, while he was still on the floor, an object bounced off a carton and rolled back toward him. It was a plastic triangle with three wheels on the underside so that it stood about one and a half to two inches off the ground. The object did not have a price tag on it, nor was it labeled with defendant's name.

He did not feel any pain other than that the wind had been knocked out of him, but he did not attempt to get up. He had fallen in an aisle near some double doors, and while he was still on the floor, a male employee came out of these doors. The witness asked the employee for help, who replied, "All right," went back through the doors, and reappeared a few minutes later with another male employee. One of the men left to get a glass of water and returned shortly with the water and a female employee. The witness was still on the floor, and no one other than those three employees were in sight. When he told them he had slipped on a roller-type object, the woman picked up the triangular object and threw it away. One of the male employees then helped him up and walked with him toward the doctor's office, located at the front of the store on one of the upper floors. As they neared the center of the basement, the witness' wife walked up, and the employee took both the witness and his wife up one flight of stairs and then in an elevator to the doctor's office. He was in the doctor's office about 40 minutes, answering questions. Although both a doctor and nurse were present, neither of them examined him. By this time, his back was beginning to hurt, and he told the nurse of the pain. The nurse told him to go home and take a hot bath and that the pain would subside. He and his wife left the store, he driving the car, and they arrived home at about 5:00 or 6:00 P.M.

There was extensive evidence on the issue of damages, including medical testimony concerning two back operations, but in the light of our view on the question of liability, a recitation of that evidence is not called for here.

Anna Stecyna, for the plaintiff:

She was employed by defendant as a clerk. In April, 1966, she was working in the housewares department located in the rear section of the basement of the store. On May 1, 1966, she was transferred to the hardware department located across the aisle from the housewares department "up on the other end." She was in an automobile accident on May 26, 1966, and did not return to work after that time. Consequently, she was not in the store on the date of plaintiff's accident.

While working in the housewares department, a month before the incident in question, she became familiar with certain objects triangular in shape and having three wheels on them. They were a regular unit to a waxer or polisher. She had seen children and employees of the store trying to use these objects as roller skates, so she would pick them up off the floor and put them on one of the back counters low down. One of the polishers with the wheel attachment was on display, the others were in cartons. She did not know if the wheel attachments had been on the floor after May 1, 1966, or whether they had been on display on May 31, 1966. She had no reason to see them. However, after her transfer on May first, she did see one which somebody had moved to the hardware department and she returned it to the counter in the housewares department.

At the close of the cross-examination of this witness, defense counsel made a motion to strike all of her testimony as being irrelevant. Whereupon, plaintiff's attorney stated that he thought he had heard cross-examination to the effect that the wheel attachments were owned by somebody else, and that "the only purpose [of her testimony] is to show these are Montgomery Ward property, and this is three to four weeks before this." Accepting this statement as to the narrow objective of the witness' testimony, the court then denied defendant's motion to strike, but expressly ruled that the testimony would be admitted solely for the limited purpose of showing that defendant "had some of those [roller-type objects] in the store within thirty days from this accident."

David Neesan, for the plaintiff:

On May 31, 1966, he was employed by defendant to do heavy stock work. He was working in the area toward the back of the basement of the store when he came upon a man sitting on the floor. He also saw a triangular object with wheels on it on the floor either across from the man or in the next aisle.

Eddie L. Cephas, for the defendant:

On May 31, 1966, he was employed by defendant as a porter in the basement of the department store. On that date, at about 4:00 P.M., he came upon a man in the aisle. He could not remember whether the man was sitting or squatting. The man told him that he had just fallen on a piece of metal and had had the wind knocked out of him. The witness looked around in the aisle for something on the floor but did not see anything. He then went to inform another employee, David Neesan, of the incident, and when Neesan came to aid the man, the witness left. He thought that the man had stood up without any help.

Ann Pishum, for the defendant:

On May 31, 1966, she was employed by defendant as a protection supervisor, with her office in the basement of the store. On that date, at about 4:30 P.M., Neesan came to her office to advise her that someone had had an accident. She went with Neesan to the housewares department and came upon a man in the aisle. She asked for his name and address, and the name he gave was Adam Perminas. He told her that he had fallen, and she told him that he should go to the medical department. He did not want to go, but she insisted. She and Neesan escorted him to the front stairway, and Neesan took him up to the medical department. Plaintiff did not limp or need any assistance in walking.

When first in the aisle in the housewares department, she looked at the floor, and saw that it was "free and clear." There were no scuff marks on the floor, and she did not see a triangular object with wheels on it in the aisle. After she had escorted plaintiff to the front stairway, she returned to the housewares department and inspected the area ...

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