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King v. Exchange Nat'l Bk.

OPINION FILED SEPTEMBER 5, 1978.

ALFRED KING ET AL., PLAINTIFFS-APPELLEES,

v.

EXCHANGE NATIONAL BANK OF CHICAGO, TRUSTEE, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. JUSTICE BROWN DELIVERED THE OPINION OF THE COURT:

Plaintiffs, Alfred King, Margaret Budz, administratrix of the estate of Eli Joseph Jage, deceased, and Leonard Eingorn, administrator of the estate of Dora Eingorn, deceased, filed separate actions for damages resulting from a fire in the apartment building in which plaintiff King and the decedents had resided as tenants. The cases were consolidated and Eva Carr was substituted as administratrix of the estate of Eli Joseph Jage. The defendants are a land trustee, 13 beneficial owners, a real estate management firm, and a building manager.

The complaints and amended complaints alleged that the defendants negligently, carelessly and improperly maintained and controlled the building. They further alleged violations of various city ordinances relating to fire prevention and protection.

The jury rendered verdicts in the amounts of $150,000 for King, $15,000 for Carr, and $10,000 for Eingorn. Judgment was entered on the verdicts and defendants' post-trial motion was denied. The defendants appeal from the entry of the judgment.

The defendants raise the following issues for our review: (1) whether the plaintiffs proved negligence and proximate causation and whether they are guilty of contributory negligence as a matter of law; (2) whether prejudicial error was committed by plaintiffs' introduction into evidence of matters relating to fire alarms, smoke detectors, fire escapes and the fire resistant quality of the doors between the stairwells and the hallways; (3) whether prejudicial error was committed by the admission into evidence of testimony regarding the intoxication of the building manager; (4) whether prejudicial error was committed by giving plaintiffs' instructions Nos. 16, 17, 34, and 30; (5) whether the trial court erred in denying the defendants' motion for judgment n.o.v.; and (6) whether the verdicts are against the manifest weight of the evidence.

The fire occurred on Sunday, May 10, 1970, in a 39-apartment, 4-story brick building located at 215 N. Central Avenue, Chicago, which had been built in 1926. Plaintiff King and the janitor of the building, Phillip Ventincinque, testified that the apartments were furnished. Alvin Goldstein, a defendant beneficiary and owner of defendant LaSalle Mortgage and Realty Company, testified that the apartments were unfurnished.

Plaintiff King and the decedents lived on the fourth floor in separate apartments. King was age 39, Jage was age 67, and Eingorn was age 61 at the time of the fire. King was seriously injured and Jage and Eingorn died from asphyxiation due to smoke inhalation.

The record reveals that the building was located on the east side of Central Avenue and it extended west to east. The first floor was on the garden level, "half up on ground and half below ground." The garden level had 5 or 6 apartments in the front of the building, and a laundry room, a storeroom, and furnace in its own enclosure in the rear of the building. There were two entrances for the building, one in the front and the other in the rear.

The door to the front entrance opened into a vestibule. The interior door in the vestibule was kept locked, and could be opened by key or by use of an intercom system activated by a tenant inside an apartment. A corridor with a concrete floor ran from this interior door to the rear exit door, which was kept locked and had a "panic lock" which would allow a person to push the door open from the inside of the building. There was a passenger elevator off this corridor which stopped at each floor. On the south side of this corridor in the front of the building was the "front stairwell" and on the north side of this corridor in the rear of the building was the "rear stairwell." Both stairwells were enclosed, were composed of wood, and ran to the fourth floor level. Only the front stairs were carpeted. There were hallways on the other three floors running east and west, which were separated from the stairwell landings by doors with doorchecks; the lower half of these doors were solid wood and the upper half was glass. There were 11 or 12 apartments on each of the other three floors.

Plaintiff King testified that on Saturday, May 9, 1970, he spoke with the building manager, defendant Betty Doupe. He testified that she took him to the rear stairwell and showed him a large plush chair that was located on the concrete floor under the rear stairwell, and asked him whether he would like to have the chair for his apartment. He stated that he told her "Well, I don't know." He further testified that he had seen the same chair on the previous Thursday or Friday, and that he had seen furniture under the rear stairwell maybe 15 or 20 times prior to May 9, 1970. He stated that he had seen people loitering near that area "quite often" prior to May 9, 1970. He testified that at about 7:30 p.m. on May 9, 1970, he went down to the garden level to do laundry and saw the same chair, but it had been moved so that only half of it was under the rear stairwell. He returned to his apartment and when he came back down to retrieve his laundry, he noticed that the chair was positioned so that it was still only partially under the stairwell.

King testified that he went upstairs and put his laundry away. He went outside his apartment and gathered reading material from garbage cans which were located on each level of the stairway. At that time, he noticed that the doors between the rear stairwell landings and the hallways at each floor were open. He testified that he could not recall them ever being closed during the seven months he lived there. He testified that he never saw the doors closed between the front stairwell landings and the hallways. He stated that he used the stairs 90% of the time he went up and the elevator was broken most of the time and very slow. He retired for the evening about 11 p.m.

He testified that the next thing he remembered was waking up about 4:45 a.m. to a room filled with smoke. He opened his apartment door and saw red and black smoke billowing up the rear stairwell, and slammed his door. He opened all of his windows and called to people across the way to call the fire department. He then waited on the bathroom window ledge. His shirt caught on fire, he hung on the window, let go, and fell 4 stories to the concrete. He was burned on his back and sustained injuries to his arms, left shoulder, left leg and right Achilles tendon. Prior to the fire, he worked as a helper on a beer delivery truck. At the time of trial, he had not returned to work since the fire.

Herman Robinson, Jr., a third-floor tenant, testified that on May 10, 1970, at approximately 3 a.m. or 3:30 a.m., he went down the back stairs and saw an old man, whom he described as drunk, sitting in a chair directly underneath the stairway. He was not able to carry on a conversation with the old man. He testified that the door to the third floor was propped open with a rubber wedge. He stated that the doors to the front and back were always open. He was in his apartment at the time of the fire, and was lowered out the window of another apartment.

Plaintiff Carr, daughter of the decedent Jage, testified that she saw her father approximately five times per week and that she saw Betty Doupe, the building manager, about two or three times a week. She testified that she was in the apartment building twice on May 9, 1970, and that the doors separating the front stairwell from the hallways were open when she left at 10:30 p.m. She stated that on May 9, 1970, at approximately 1 p.m., she came to pick up a check from Doupe that her father had written. The following exchange then occurred:

"MR. FELTMAN: Did you notice anything unusual about her at that time?

MR. O'MALLEY: Objection.

THE COURT: No. She may answer.

CARR: Yes.

THE COURT: This is the day before the fire?

MR. FELTMAN: The day before the fire.

CARR: Yes, sir, I did.

MR. FELTMAN: What was that?

CARR: She was intoxicated, definitely intoxicated.

MR. FELTMAN: Had you ever seen her in this ...


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