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Jardine v. Rubloff





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Irving R. Norman, Judge, presiding.


Rehearing denied December 1, 1978.

Plaintiff, Yolanda Jardine, filed a two-count complaint in the circuit court of Cook County seeking recovery for personal injuries sustained on December 12, 1969, when she fell while alighting from an elevator allegedly malfunctioning in its leveling system. Count I charged Arthur Rubloff & Company (Rubloff) and Arthur Rubloff, Stanley Goodfriend, and George Dovenmuehle, co-partners doing business as Carl Sandburg Center (Sandburg Center), with negligence in the ownership, operation, maintenance, management and/or control of the elevators thereby breaching their duty as common carriers of passengers. Count II charged Otis Elevator Company (Otis) with negligence in furnishing and installing elevator equipment and with negligence in maintaining the elevator system. Plaintiff twice amended her complaint, increasing the ad damnum, making more definite and certain the allegations of negligent conduct, and adding a third count against Otis for defective manufacture and design.

Rubloff and Sandburg Center filed a two-count countercomplaint against Otis seeking indemnity for any judgment against them in favor of plaintiff. Count I was predicated on the elevator maintenance contract with Otis. Count II sought relief on the common law active-passive negligence theory. They also filed an amended countercomplaint adding an additional count seeking relief against Otis for any liability imposed upon them arising from any defect in the manufacture or design of the elevator system.

The jury returned a verdict in favor of plaintiff and against Rubloff and Sandburg Center in the amount of $65,000, but found against plaintiff and in favor of Otis. The jury also rejected the counterclaim of Rubloff and Sandburg Center against Otis. Judgment was entered on the verdict, and the post-trial motions for judgments notwithstanding the verdict or, alternatively, for a new trial by plaintiff and counterplaintiffs, Rubloff and Sandburg Center, were denied. Following entry of judgment on the verdict and the denial of the post-trial motions, plaintiff entered into a loan agreement with Rubloff and Sandburg Center for $45,000 in consideration for their promise to refrain from pursuing their appeal against plaintiff while permitting the plaintiff to pursue her appeal against Otis. The appellate court affirmed the judgment against Rubloff and Sandburg Center but reversed the judgments in favor of Otis. It determined that the verdicts were against the manifest weight of the evidence, and entered judgment notwithstanding the verdict in favor of plaintiff for $65,000 and in favor of Rubloff and Sandburg Center on the counterclaim for indemnity, also for $65,000. (51 Ill. App.3d 492.) We granted Otis' petition for leave to appeal under Rule 315 (65 Ill.2d R. 315).

At the outset we hold that the appellate court did not apply the proper standard in entering judgments n.o.v. against Otis. The appellate court held:

"By the testimony of the witnesses, the non-levelling condition of the elevator existed and went undiscovered at a time when Otis admits it conducted numerous weekly inspections. Since Otis knew or should have known, by such inspections, of the non-levelling condition of the elevator yet failed to repair said condition, the evidence manifestly favors a finding that Otis breached its obligation to the plaintiff. The contrary verdict of the jury, for Otis and against the plaintiff, must be set aside and judgment notwithstanding the verdict must be entered in plaintiff's favor. (51 Ill. App.3d 492, 497.)

That disposition is in contravention of the standard established in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, to be used in determining when a trial court should enter a directed verdict or a judgment n.o.v. in a jury case. It was said there that a judgment n.o.v. may be granted "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." (37 Ill.2d 494, 510.) This court recently noted in Mizowek v. De Franco (1976), 64 Ill.2d 303, 310, the distinction between the standard for the direction of verdicts and that for the granting of new trials:

"The standards relating to the direction of verdicts and to the granting of new trials are of course different. In Pedrick this court declared: `We have rather carefully preserved the distinction between the evidentiary situation which will require a new trial [citation], and that justifying direction of a verdict or judgment n.o.v. There is, in our judgment, excellent reason for so differentiating to be found in the radically different results of allowance of the two motions, and we believe a more nearly conclusive evidentiary situation ought to be required before a verdict is directed than is necessary to justify a new trial.' (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 509-10.) On a motion for a new trial a court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Heideman v. Kelsey, 414 Ill. 453, 466; Millikin National Bank of Decatur v. Shellabarger Grain Products Co., 389 Ill. 196, 200; Hunt v. Vermilion County Children's Home, 381 Ill. 29, 34; 3A Nichols, Illinois Civil Practice sec. 3887, at 402 (1961)." (Emphasis added.)

Plaintiff argues that even if the evidence supports the verdict to some extent so that a judgment n.o.v. is improper, it nevertheless may be appropriate to order a new trial. Thus, we turn now to the question of whether the plaintiff is entitled either to a judgment n.o.v. or, in the alternative, to a new trial. The verdict in favor of plaintiff against Rubloff and Sandburg Center is not at issue.

Plaintiff had resided at 1355 North Sandburg Terrace in Chicago since 1963. The building had three elevators. Plaintiff used the service elevator, as required by the building rules, when she walked her dog. She walked the dog at least once a day. On Friday, December 12, 1969, she entered the service elevator and rode to the first floor. Plaintiff testified that the elevator stopped completely, one inch below the floor level. As she lifted her foot to step out, the elevator jerked, her heel hit the first-floor landing, and she was pitched forward against the wall and door frame opposite the elevator.

Otis had entered into a contract with Rubloff and Sandburg Center to maintain the elevators at 1355 Sandburg Terrace. Otis also had designed, manufactured and installed the elevators. William Arbuthnot was the Otis elevator mechanic assigned to maintain the approximately 20 to 24 elevators in Sandburg Center, including the three at 1355 North Sandburg Terrace. In addition, he maintained the four elevators at the Ambassador Hotel. He was the only elevator maintenance man Otis had assigned to Sandburg Center on a full-time basis in 1969. His working hours were from 8 a.m. to 4:30 p.m. five days a week. If any problems arose after 4:30 p.m., Sandburg Center contacted the Otis office or answering service, which would then get in touch with Arbuthnot or the next available maintenance man to take care of them. Otis did not maintain an office in Sandburg Center.

Arbuthnot's duties under the full maintenance contract were to keep the elevators in good working condition. He performed preventive maintenance to ensure that malfunctions did not occur. Equipment was replaced before trouble developed. A full maintenance contract, as opposed to some other type of maintenance contract, covered the whole system as opposed to enumerated parts, grease and oil. Each morning Arbuthnot reported to the office of Joseph Downey, the operations manager at Sandburg Center, to see if there were any complaints. As a matter of routine, he performed maintenance on each of the elevators at 1355 Sandburg Terrace once a week. He used a check ...

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