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Linde v. Welch

OPINION FILED APRIL 10, 1981.

WALTER LINDE, PLAINTIFF-APPELLANT,

v.

ROSS S. WELCH, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. SIDNEY A. JONES, JR., Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Plaintiff slipped on a small patch of ice and fell down the front stairs of defendant's apartment building in January of 1976. The jury at the resulting trial returned a general verdict in favor of defendant and, responding to a special interrogatory, declared that plaintiff was guilty of contributory negligence.

The issues on appeal are whether the court erred in instructing the jury and whether the jury's determinations are against the manifest weight of the evidence.

During a two-year period, plaintiff used those steps between 70 and 75 times. The day he was injured, plaintiff wore "dress shoes" with leather soles. The front stairs were completely clear of ice the first few times plaintiff used them that day. But, when the temperature reached the low 30's, water dripped from icicles hanging from the gutter that ran above the stairs. Small patches of glaze formed on the top steps in the hour or two between when plaintiff last entered and left the building that day.

It is argued that "[c]omplete review of the record, fails to disclose one shred of evidence to show plaintiff failed to exercise ordinary care for his own safety at the time of the occurrence and the finding of the jury on the special interrogatory is * * * against the manifest weight of the evidence and the law." But, during cross-examination of plaintiff, there were these exchanges:

"Q. Why didn't you see [the ice] on your way down the steps?

A. Because first of all, I probably didn't look for it * * *.

Q. You looked down at the first step and also the second step?

A. Well, I looked down at the stairs in general. I certainly didn't look at each step."

The complaint accuses defendant of negligently permitting an unnatural accumulation of ice to form on the steps as a result of an allegedly rusted out and leaky gutter. According to the defense, the gutter was frozen solid with ice and the glaze on the steps was a natural accumulation which formed when snow on the roof melted and overflowed the gutter.

Defendant was at the scene both the day of the accident and a day or two later. Initially, when questioned by plaintiff's counsel, he testified that he had seen no icicles hanging from the gutter. But, in his discovery deposition, defendant admitted seeing icicles. At another point in his trial testimony, defendant explained that there had been some icicles hanging from the gutter. Because of the initial discrepancy, plaintiff tendered a jury instruction on impeachment by prior inconsistent statements. (Illinois Pattern Jury Instructions, Civil, No. 3.01 (2d ed. 1971) (hereinafter IPI).) The court refused the instruction on the grounds that the initial discrepancy was immaterial, and that there was no dispute that the glaze on the steps formed because of dripping icicles hanging from the gutter. The main dispute was whether these were "unnatural" leaky-gutter icicles or "natural" frozen-gutter-overflow icicles.

Despite plaintiff's objections, the court gave non-IPI instructions which stated: (1) if the ice upon which plaintiff slipped was a natural accumulation, the verdict should be for defendant; and (2) if the ice came from leaks in the bottom of the gutter, it was an unnatural accumulation, but if the ice formed from overflow of the gutter, the accumulation was natural.

OPINION

• 1, 2 A plaintiff's contributory negligence bars his negligence action. (Freeman v. White Way Sign & Maintenance Co. (1980), 82 Ill. App.3d 884, 403 N.E.2d 495.) Normally, the issue of contributory negligence is a question of fact for the jury. (Hartgraves v. Don Cartage Co. (1976), 63 Ill.2d 425, 348 N.E.2d 457.) When a jury deciding a negligence case answers a special interrogatory by finding that plaintiff was contributorily negligent, the special finding controls over a general verdict for plaintiff. (Phillips v. Shell Oil Co. (1973), 13 Ill. App.3d 512, 300 N.E.2d 771; Ill. Rev. Stat. 1979, ch. 110, par. 65.) Although the special finding will not be permitted to stand if it is against the manifest weight of the evidence (Phillips v. Shell Oil Co.), errors which have no tendency to affect or produce the special finding will not be considered on appeal. (Vischer v. Northwestern Elevated R.R. Co. (1912), 256 Ill. 572, 100 N.E. 270.) For example, in Vischer, a personal injury action, there was a verdict of not guilty and a special finding that none of defendant's employees was negligent. The court held that errors which could not have influenced the jury in answering the special interrogatory were harmless because the special finding was conclusive ...


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