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Blake v. Dickinson

JULY 3, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. LYLE E. LIPE, Judge, presiding.


On February 10, 1968, plaintiff, Sylvester Blake fell and was injured while purchasing gas and cigarettes at "Al Dickens Super 100" gas station located at 437 E. 39th Street in Chicago, Illinois. In his complaint plaintiff alleged, inter alia, that he was a business invitee who was injured when he slipped on ice covered with oil that had been allowed to form on defendants' premises due to defendants' negligence. Plaintiff brought suit against both the service station lessee-operator, Dickinson, and the oil company lessor, Clark Oil & Refining Corporation (hereinafter referred to as Clark). The jury returned a verdict of $15,000 in favor of plaintiff as to defendant Dickinson and a verdict against plaintiff as to defendant Clark. Subsequently, both plaintiff Blake and defendant Dickinson filed post-trial motions for judgments n.o.v. or in the alternative for new trials. In response to Dickinson's motion, the trial court ordered that judgment n.o.v. be entered in favor of Dickinson. The trial court further ordered that Blake's post-trial motion for judgment n.o.v. against Clark or in the alternative for a new trial be denied.

Plaintiff now appeals from the above orders of the trial court.

On appeal, plaintiff makes the following two contentions: (1) that there was sufficient evidence to support the jury's finding of negligence on the part of the lessee-operator, Dickinson, and (2) that the lessor, Clark, retained strict control over the maintenance and operation of the leased premises and therefore the jury verdict in favor of Clark was against the manifest weight of the evidence.

We reverse in part, affirm in part and remand with directions.

The testimony adduced at trial concerning the condition of the premises (at 437 E. 39th Street) and the circumstances of plaintiff's fall is conflicting. Plaintiff testified that on February 10, 1968, he drove into the Clark Service Station located at 437 E. 39th Street to purchase gas and oil. After his vehicle was filled with gas, plaintiff remembered that he wanted to buy some cigarettes. Plaintiff further testified that as he was walking toward the gas station office to pay for the cigarettes, he slipped backwards on a patch of ice covered with oil, injuring his left knee. Plaintiff described the patch of ice as 2 or more feet long, a foot to a foot and a half wide, and between one-quarter and one-half inch thick. According to the plaintiff, there was a dirty color of oil on top of the ice and the ice was almost the same color as the ground. Plaintiff further indicated that it was freezing on the day in question and for several days prior thereto.

Plaintiff also testified that shortly after his fall, defendant Dickinson came over to him while he was still lying on the ground, and that at that time he told Dickinson about the fall and showed Dickinson the patch of ice covered with oil on which he had slipped. Plaintiff further testified that after the fall, his shoe, pants, and clothes were spotted with oil.

Defendant Dickinson testified that he could not remember if he had any conversation with Blake while Blake was lying on the ground immediately after the fall. Dickinson further testified that the next time he saw Blake was after the latter had gotten out of the hospital at which time Blake stated that he did not know why he had fallen. Blake denied such a conversation with Dickinson ever took place. Dickinson further testified that neither he nor any of his employees ever inspected the premises on February 10, 1968, after the occurrence.

At the time plaintiff fell, three attendants were on duty at the gas station. All three attendants testified that immediately after the fall they walked over to where plaintiff was lying and noticed nothing unusual about the area. They noticed no ice or snow on the ground. One of these attendants further testified that Blake, while lying on the ground, told him "I had a bum leg that gave away on me." Although Blake did not testify to having had the above conversation with the attendant, he did testify to prior injuries to both knees. Plaintiff sustained a slight injury to his left knee in 1959 and injuries to his right knee in 1959, 1963 and 1964.

As to the liability of defendant Clark, a lease and Retailer Dealer Consignment Agreement in effect at the time of the occurrence were received into evidence. John Commack, district agent for Clark, testified that he would make periodic inspections to oversee compliance of Dickinson's obligations under the lease and that the safety of the premises lies solely with the lessee. Commack further testified that Clark had several short television commercials advertising Clark's product as the very best. These commercials did not advertise the price of the product. Blake testified that he had heard advertisements about Clark's having good, cheap gasoline and had been using it ever since hearing these advertisements.

• 1 Plaintiff first contends that there was sufficient evidence to support the jury's finding of negligence on the part of defendant Dickinson and that the trial court thus erred in entering judgment n.o.v. in favor of said defendant. The standard to be used in determining when a judgment n.o.v. has been properly entered is clearly stated as follows in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14:

"* * * verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand."

It is with this standard in mind that we review plaintiff's first contention.

In the case at bar, five witnesses, plaintiff Blake, defendant Dickinson, and three gas station attendants on duty at the time of the accident testified concerning the circumstances surrounding plaintiff's fall. None of these witnesses can be classified as disinterested. Further, plaintiff's testimony concerning the cause of his fall conflicts significantly with the testimony of defendant and his three employees. In this regard, the situation in the instant case is similar to that in Watson ...

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