APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
A. HAREWOOD, Judge, presiding.
MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:
This is a wrongful death case in which the plaintiff, the mother of the decedent, alleged that the negligent acts and omissions of the two defendants proximately caused her son's death when, in a store owned by the defendant Batelli, a handgun allegedly owned by defendant Onesti discharged, fatally wounding her son. After a trial without jury the court awarded judgment to the plaintiff and assessed damages jointly and severally against the defendants in the amount of $20,000.
Both defendants appeal from the judgment entered against them and present the following issues on appeal: (1) whether the evidence proves any breach of duty by the defendant Batelli; (2) whether any negligent act or omission by defendant Batelli was the proximate cause of decedent's death; (3) whether the evidence proves any breach of duty on the part of the defendant Onesti which proximately caused the death, and (4) whether the decedent was free from all negligence contributing to his own death.
The pertinent evidence adduced at trial is as follows. At the time of the incident in question the defendant Batelli owned and operated a small neighborhood grocery store on South Western Avenue in Chicago. The store was also a meeting place for Batelli's friends. The decedent, hereinafter Gonzalez, and defendants Onesti and Batelli were all friends and they, and other friends, would often meet and socialize at Batelli's store. They would spend time in the store talking to Batelli and one another, read newspapers and make sandwiches. Batelli would not charge his friends for the sandwiches and they were, evidently, not expected to make purchases on these social visits. Batelli testified that the decedent Gonzalez would, on occasion, make small purchases from him, but 90% of the time he came into the store as Batelli's friend, to visit, and bought nothing. Of all of Batelli's friends Gonzalez spent the most time in the store with him. The plaintiff, Gonzalez' mother described her son and Batelli as "inseparable friends".
On October 25, 1967, the day of the incident in question, both Onesti and Gonzalez had been in and out of the store at various times during the day and early evening. Gonzalez did not purchase anything from Batelli during these visits but had merely engaged in general conversation with Onesti and Batelli. When Gonzalez returned at approximately 9 P.M., Batelli, Onesti and Mario Florio, a 13-year-old neighborhood boy who worked for Batelli, were present in the store.
When Gonzalez entered the store Batelli was behind an "ice cream case" working on business bills and invoices. This ice cream case was one of a series of counters that ran along the north wall from which Batelli served his customers. The ice cream case was approximately 8 feet long and 5 1/2 feet high. One end of this case abutted a lower counter used to check out items purchased by customers. Onesti was behind this lower counter, about 5 to 8 feet to the right of Batelli. Florio was further to the right of Onesti restocking some shelves at the far end of the store.
All three witnesses, Onesti, Batelli and Florio, testified that when Gonzalez entered he had a brown paper bag with him. He walked straight over to Onesti and did not speak to Batelli or Florio. Both Batelli and Florio noticed Gonzalez come in but they continued working and paid no attention to the conversation that began between Gonzalez and Onesti.
Onesti testified that Gonzalez removed a handgun from the paper bag and asked him if he wanted to see it. He displayed the gun to Onesti and offered to let him hold it. Onesti further testified that as Gonzalez handed him the gun, handle first, with the barrel pointing at himself, he touched the side, handle or barrel and, almost simultaneously, the gun discharged wounding Gonzalez in the face. Onesti stated that he did not have his hand on the gun's handle or trigger at the time and did not know if Gonzalez' hand was on the trigger. A prior deposition of Onesti was read into evidence in which the witness stated that as soon as Gonzalez offered the gun to him, Gonzalez pulled it back, saying someone was coming into the store. The entire incident happened quickly and the gun fired 3 or 4 minutes after Gonzalez entered the store.
Batelli testified that he had no knowledge that a gun was brought on the premises until after the shooting. He did not see the gun in the hands of either Gonzalez or Onesti. He testified that at his position behind the ice cream case his view of the lower counter area where Gonzalez and Onesti were talking was obstructed by a scale and a cash register. This was corroborated by other witnesses who knew the layout of the store. The first time he saw the gun was a few minutes after the shooting when he saw it on the floor on the customer's side of the counter.
Florio testified he did not see the shooting and never saw a gun in Onesti's hands. He denied he testified at a coroner's inquest to the effect that he saw a gun in Onesti's hands prior to the incident.
After the gun went off there was, obviously, great confusion in the store. The three made attempts to aid Gonzalez while Batelli called the police and an ambulance.
Aurelio Gutierrez testified that he entered defendant's store shortly after the shooting, but before the police arrived. He stated that after seeing Gonzalez lying on the floor he heard Batelli say to Onesti, "You shouldn't have been playing around. You shouldn't have did [sic] it." Gutierrez also testified that he saw Batelli put a gun into a bag and give the bag to Florio telling him to dump it in a sewer, whereupon Florio took the bag and left by the back door. He further stated that when he heard the police coming he left the store because he didn't want to get involved. When later contacted by the police Gutierrez denied any knowledge of the shooting and then told them a story he admitted was different than his trial testimony. Both defendants denied that Gutierrez was ever inside the store at any time on the evening of October 25.
One further witness testified that she was familiar with the Batelli store and that it contained a large, wall mounted mirror that could have afforded Batelli a view of the lower counter area on the night of the shooting. She further testified that on her previous visits to the store she had the opportunity to notice that this mirror, a security device to discourage shoplifters, was positioned so that Batelli, seated behind the ice cream case, could see the area ...