APPEAL from the Circuit Court of Cook County; the Hon. JOHN J.
MORAN, Judge, presiding.
JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
This action was brought to recover damages for personal injuries sustained when the plaintiff fell on the premises owned by defendants, Ralph Thompson and Billie Thompson. The plaintiff's complaint sounded in both negligence and nuisance. The defendants counterclaimed for allegedly unpaid rent and damages to the premises. The jury rendered a general verdict in favor of plaintiff on the complaint in the amount of $30,000 and in favor of the defendants on the counterclaim in the amount of $175. However, the jury answered a tendered special interrogatory finding the plaintiff contributorily negligent. The court vacated the general verdict and entered judgment in favor of the defendants on both the complaint and counterclaim. Plaintiff appeals, presenting the following issues for review: (1) whether the special interrogatory is an unconstitutional device; (2) whether the special interrogatory is in conflict with Illinois Pattern Jury Instructions, Civil, No. 1.01 (2d ed. 1971) (hereinafter cited as IPI Civil); (3) whether the special interrogatory was in proper form; (4) whether certain jury instructions were in error; (5) whether the trial court erred in entering judgment on the special verdict; and (6) whether defense counsel's question regarding plaintiff's failure to file an income tax return was so prejudicial as to warrant the granting of a new trial. No issues are raised as to the counterclaim. We reverse the judgment entered on the special finding and remand the cause with directions to enter judgment in favor of plaintiff.
The following testimony adduced at trial is relevant for determination of this appeal.
In April of 1975, plaintiff leased an apartment from defendants Ralph Thompson and Billie Thompson under an oral agreement whereby the plaintiff agreed to pay $175 per month for the apartment and would do any necessary minor repairs. The defendant Ralph Thompson agreed to do the necessary major repairs. Sarah Thompson collected the rent and would send it to her brother-in-law Ralph Thompson who resided in Tennessee.
During the trial Florence Manninen (nee Turner), Sidney Manninen, now her husband, and her daughters, Lola Brion, Sandy Turner and Patti Turner, all testified that during plaintiff's tenancy there was never an operative light on the back porch and stairway of the building in question.
On September 27, 1975, at about 10:30 p.m., the plaintiff began to descend the back steps of the building while assisting an elderly dinner guest. As she began her descent, she had hold of her elderly guest's right arm with her left arm. Plaintiff was doing this because she was worried about the stairs. At the same moment she was reaching for the bannister with her right arm. The plaintiff fell three or four stairs, resulting in a fractured ankle.
The lighting in the front entrance to the building was always in working condition. Plaintiff used the back stairway at night maybe once a week. She would use a flashlight every time she used those stairs at night and would make her daughters use a flashlight also. She did not use a flashlight on the night of the accident.
The plaintiff presented expert testimony from an electrician. He went to the premises and took photographs of the scene and inspected the electrical system on the stairwell. He testified that the light was inoperative and not appropriate for that particular area.
Count I of plaintiff's two-count complaint alleged that the defendants negligently failed to inspect and repair the lights on the rear exit or stairs of the building. Count II alleged that plaintiff was injured as a result of a public nuisance caused by defendant's failure to adequately light the rear exit or stairs of the building in violation of the Municipal Code of Chicago, section 67-17. Defendants Ralph Thompson and Billie Thompson counterclaimed for alleged unpaid rent and damage to the premises. At the close of the plaintiff's case Sarah Thompson was dismissed as a party on motion of defendants without objection by plaintiff.
The jury found in favor of the plaintiff and against the defendants on the complaint, awarding plaintiff $30,000 damages in the general verdict. However, the jury also answered in the affirmative the following special interrogatory: "Just before and during the occurrence was the plaintiff guilty of contributory negligence, which was the direct and proximate cause of her own injury."
The plaintiff moved that the finding on the special interrogatory be vacated as against the manifest weight of the evidence, and being unconstitutional. This motion was denied. The defendants moved that the general verdict be vacated and the court enter judgment against plaintiff and in favor of the defendants. This motion was sustained. A post-trial motion filed by the plaintiff was denied.
Plaintiff initially challenges the constitutionality of section 65 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 65). Under this provision, when a special finding of fact is inconsistent with the general verdict, the special finding "controls." Citing the appellate court opinion in Albaugh v. Cooley (1980), 88 Ill. App.3d 320, 410 N.E.2d 873, plaintiff urges essentially that the special interrogatory is an unconstitutional device. During the pendency of this appeal the Illinois Supreme Court reversed Albaugh and held that the use of the special interrogatory as proscribed by the legislature under section 65 is proper. (Albaugh v. Cooley (1981), 87 Ill.2d 241, 429 N.E.2d 837.) Also, the appellate court opinion in Jenkins v. Bobrowicz (1981), 97 Ill. App.3d 526, 422 N.E.2d 1132, held that section 65 was not an unconstitutional invasion of the judiciary's inherent ...