APPEAL from the Circuit Court of Cook County; the Hon. ALFONSE
F. WELLS, Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Rehearing denied February 25, 1975.
This action was brought by plaintiff, Vito Saputo, against defendants, Jerome Fatla, d/b/a Jerry's Shell Service, and Shell Oil Company (hereinafter Shell), for injuries sustained when plaintiff allegedly fell in the restroom of a gasoline station owned and operated by defendants. The jury returned a verdict in favor of both defendants and judgment was entered thereon. On appeal, plaintiff does not contend that the verdict is against the manifest weight of the evidence, but argues that numerous evidentiary and instructional errors deprived him of a fair trial. At trial, the following evidence was adduced:
The plaintiff, Vito Saputo, testified that in 1965 he was a sales representative for a garment-dying and -cleaning service, and operated a pick-up and delivery service which required him to drive approximately 1500 miles a week. In November of 1965, he attended the State Cleaners and Dyers Convention in Chicago. The convention concluded on a Sunday, November 28, 1965, and he departed for his home in Springfield, Illinois about 2 P.M. After proceeding on the Stevenson Expressway for a short time, he exited to purchase gas. He drove into the Shell station in question and, after directing the attendant to fill the tank with gas, proceeded to the men's room.
Plaintiff stated that he opened the door of the washroom and, seeing that it was dark, stepped inside reaching for the light switch at the same time. Just inside the washroom, his foot slipped causing him to fall on his buttocks and back. He stated that there was three-quarters of an inch of water on the floor and that it was a little slimy as though it had been there for a while. Water was overflowing from the toilet bowl and the top of the tank was off and resting on the side. He arose and walked to the front of the station for a rag to wipe his hands and told the attendant that he had fallen and that the restroom floor was covered with water. He further stated that he made no specific complaint of injury at that time.
After leaving the station, plaintiff proceeded home to Springfield and felt the pain getting worse along the way. When he arrived home, he called his doctor who prescribed some pain pills. *fn1 The following day he contacted Dr. Zaricznyj who sent him to a hospital for treatment. He was placed in traction and remained in the hospital for 2 weeks. After he was released from the hospital he was unable to return to work and hired a man to work his route from December 1965 to August 1966. During this time, he went to Mayo Clinic where he was examined by several doctors and a spinal fusion was performed upon him. When he returned to Springfield, his doctor advised him not to return to work.
Plaintiff resumed his route in October of 1966, and continued at his employment until 1969. At that time, the pain became unbearable, and he was unable to continue his employment. Plaintiff stated that his physical condition at the time of trial was "all right," although he could not engage in all the physical activities that he did prior to the incident on November 28, 1965.
Thomas McDuff testified, under section 60, *fn2 that he was employed by Shell as a district engineer. He stated that there were no records of any washroom repairs in 1965 because day-to-day maintenance records are kept for only 3 years. The witness further stated that the lease and dealer sales agreement are the two documents that control the operation of the business between the operator and Shell. Under the dealer sales agreement, the obligation for maintenance and repair of station facilities was placed upon the station operator, but in practice Shell assumed responsibility for maintenance and repair of station equipment and facilities.
The witness explained that the average toilet is designed on a trap principle. Water can be poured continuously into an open bowl and as long as it does not exceed the cap of the drain pipe, the water will continue to carry away. An overflow will occur only when there is an obstruction in the toilet itself, a break in the bowl, or when the plunger that keeps the water in the tank is jammed closed.
Jerome Fatla testified pursuant to section 60 that he operated the Shell station in question. On November 28, 1965, he worked from 8 A.M. until 1:30 P.M., when he was relieved by his employee, Emil Understall. Upon his return to the station, at about 5 or 5:30 in the afternoon, he noticed an "out of order" sign on the restroom door. Water was running out from under the door. Inside he observed that water was collecting on the floor, that the commode cover was placed on the seat, that the stopper was forced back, and that water was overflowing the seat. He pulled the stopper around so that it would go back into the hole in the bottom of the cabinet. He then pulled the flap causing the overflow to stop. The toilet was flushed and it subsequently operated properly. In his opinion, the only thing wrong with the toilet was that the stopper was forced back so that it was not properly seated in the hole. After resetting the stopper, the witness mopped up the water in the restroom; he did not use a cleaner of any sort because the water was absolutely clear. The restroom was then returned to public use.
The witness stated that there was no particular time when the washrooms were cleaned, but that he had cleaned the washroom floor immediately before he left for home that afternoon at 1:30. He did not use a solvent or a cleaner when he mopped the washroom floor at that time. It was not his experience to find oil, grease or gasoline on the floor.
Shell did all the maintenance of equipment and he would call them for plumbing repairs. In July or August of 1965, Shell was called to repair some plumbing at the station. There was a problem with the field, but not with the washrooms. Approximately once a week, Shell would have a man come out and check the washrooms. At times there were special contests for the cleanliness of stations.
On cross-examination, Mr. Fatla testified, over objection, that his cleanliness program did very well and he received several awards for his operations.
Testifying on his own behalf, the witness stated that the first time he was aware of Mr. Saputo's complaint that he had fallen in the washroom was a couple of days after the alleged incident when he received a letter from either Mr. Saputo or his attorney.
Thomas Null testified that in 1965 he was employed as a gas station attendant by defendant Fatla and on November 28, 1965, he worked at the station from 1:30 P.M. to midnight. No one complained to him of having fallen in a washroom, nor did he observe anyone with soiled or wet clothes while leaving the washroom area. His first knowledge concerning any fall was approximately a week later when his employer questioned him about it.
Emil Understall was also employed by defendant Fatla on the day in question. At approximately 2 in the afternoon, a gentleman informed him that the washroom was wet. This person did not say anything about his clothes being wet, he did not complain that he had fallen on the floor, nor did he complain of any injury. After filling up the gentleman's vehicle with gas, the witness went to look at the washroom. He saw some water on the floor as though someone had tampered with the handle or float. He then locked the door and put an out-of-order sign on it. The witness identified his initials on a gas receipt which had been issued to plaintiff on the day in question.
The medical testimony consisted of the evidence depositions of Dr. Zaricznyj, Dr. Bostrom, and Dr. Peterson, and the testimony of Dr. Hirschtick.
Dr. Zariczynj testified that he was a certified orthopedic surgeon and had first treated the plaintiff in 1963 for injuries sustained in falling off a ladder. The patient had previously consulted a Dr. Woody. He was treated with physical therapy but developed severe pain and numbness in the upper extremities. Five weeks before he saw the witness in 1963, the patient had been referred to a Dr. Hayner who diagnosed a cervical disc problem and performed surgery. Upon examining the patient, the witness stated that he had no pain in the neck but was complaining of pain in the low back. Based upon his examination and findings, the doctor concluded that the patient did not have a ruptured disc, but suffered from a lumbo-sacral sprain. The doctor prescribed a lumbo-sacral corset and physical exercises. The patient requested to be admitted to the hospital for traction, but the doctor did not do so.
The doctor next saw the patient on November 30, 1965. The patient related that he had fallen down 2 days previously and had landed hard on his buttocks. He developed severe pain in the low back which radiated down to his legs. The doctor stated that the medical significance of the fact that the patient spoke of the pain as radiating ...