Davis v. Springfield Lodge No. 158, Benev. and Protective Order of Elks

• Decision Date: 13 January 1960
• Docket Number: Gen. No. 10262
• Citation: 24 Ill.App.2d 102,164 N.E.2d 243
• Parties: Champ W. DAVIS, Plaintiff-Appellee, v. SPRINGFIELD LODGE NO. 158, BENEVOLENT AND PROTECTIVE ORDER OF ELKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 243

164 N.E.2d 243

24 Ill.App.2d 102

Champ W. DAVIS, Plaintiff-Appellee, v. SPRINGFIELD LODGE NO. 158, BENEVOLENT AND PROTECTIVE ORDER OF ELKS, Defendant-Appellant.

Gen. No. 10262.

Appellate Court of Illinois, Third District.

Jan. 13, 1960.

Rehearing Denied Feb. 25, 1960.

Olsen & Cantrill, Springfield, Herbert L. Cantrill, Springfield, of counsel, for appellant.

R. G. Heckenkamp and William F. Fuiten, Springfield, for appellee.

CARROLL, Justice.

This appeal is from a judgment entered on a jury verdict in favor of the plaintiff. The action was brought to recover for personal injuries sustained by plaintiff when he tripped and fell over a bench in the physical therapy room in the building of the defendant, Springfield Lodge No. 158, Benevolent and Protective Order of Elks, known as the Elks Club.

The record discloses that at the time he was injured, plaintiff had been a member of defendant lodge for 16 or 17 years; that at about 4 o'clock P.M. on March 31, 1956, he entered the Club and went to the card room which was in the basement of the building and had an area of 60 or 65 by 40 or 45 feet; that in this room there were a number of card tables, chairs and other smaller tables for refreshments; that he sat at one of the tables and engaged in playing cards; that to the west of the card room is a larger room with a circular bar and cafeteria where liquor and food were served; that at the extreme west end of the bar room there is a rest room; that there is a men's wash room in the southwest corner of the card room which was used as such except on 'him' and 'her' nights which were social events attended by men and women; that this men's wash room was approximately 40 feet from where the plaintiff was sitting at a card table; that to the south of the card room there is a reading room approximately 20 feet wide and equipped with divans, chairs, lamps and a TV set; that a door leads from the reading room into the physical therapy room; that west of the therapy room is a locker room in which there were showers, steam room and a rest room with toilet facilities; that access to the locker room was gained by going through the therapy room; that in the therapy room there were 3 or 4 bar bells, mats and punching bag which would ordinarily be shoved over to the left so as to leave a path 3 to 3 1/2 feet wide across the room and leading to the door to the locker room; that the therapy room door was directly opposite the door leading into the locker room.

Plaintiff testified that after playing cards for about 4 hours he decided to go to the toilet; that there was then in progress a 'him' and 'her' party; that there were men and women sitting at tables in front of the men's room in the card room; that he had on his old clothes and in order to go to that particular wash room he would have to walk through these tables; that in order to avoid doing so, he decided to use the toilet in the locker room; that he had 3 or 4 bottles of beer and was sober; that he left the card game, went into the reading room which was separated from the card room by an archway; that he then turned to his right and walked to the door of the physical therapy room; that there was no sign on the door which was closed but not locked; that he opened the door and found the room completely dark; that he felt around for the light switch and in so doing fell over something; that he didn't know what it was that caused him to fall; that he remembered nothing more until he was picked up by William J. McKinney, another lodge member; that after the lights were turned on he saw tables stacked in the room, bar bells on the floor and a bench across the aisle through which a person would walk in going through the therapy room; and that he had not been warned or notified that the toilet facilities beyond the therapy room were closed or not available to members of the lodge.

The witness McKinney testified that he saw plaintiff leave his card game; that about 10 minutes thereafter the witness also left the card room and went towards the steam room to take a steam bath; that he went through the reading room to the door of the therapy room; that as he opened the door he heard plaintiff; that he lit a cigarette lighter and saw plaintiff lying on the floor on the other side of a bench; that he walked across the floor and turned on the light; that he helped plaintiff up to the bench; and that the bench was about 4 feet long and was partially out in the passageway between the therapy room entrance door and that leading into the locker room. This witness also stated that he saw no sign on the therapy door.

Although the club janitor, a witness for the defendant, testified that at 4:30 o'clock P.M. on the day of the accident, he placed a sign on the physical therapy room door which read: 'closed at 4:30 Him and Her Party', the testimony of plaintiff and McKinney that such sign was not there when plaintiff opened the door is not contradicted.

Defendant's principal contention is that plaintiff was guilty of contributory negligence as a matter of law in entering the unlighted physical therapy room. In support thereof it is pointed out that plaintiff knew or should have known there were bar bells on the floor of such room; and that when plaintiff was confronted with the darkness of said room he should have known of the danger it presented and that the natural instinct of self-preservation should have caused him to return to the card room and go to one of the other two rest rooms which were available to him. Defendant insists that under these conditions the conduct of plaintiff in trying to locate the light switch on the wall and his failure to withdraw from the room rendered him guilty of contributory negligence which bars recovery.

The issue of contributory negligence is ordinarily and preeminently a question of fact upon which a plaintiff is entitled to have a finding of a jury. It becomes a question of law only when all reasonable minds in the exercise of fair and honest judgment would upon the undisputed facts be compelled to reach the conclusion that such facts do not establish due care and caution on the part of the plaintiff. Lasko v. Meier, 394 Ill. 71, 67 N.E.2d 162; Blumb v. Getz, 366 Ill. 273, 8 N.E.2d 620; Thomas v. Buchanan, 357 Ill. 270, 192 N.E. 215.

It follows that if there is any evidence in the record which with the legitimate inferences that reasonably may be drawn therefrom tends to show due care on plaintiff's part, then the question of contributory negligence should be submitted to the jury.

We do not think it was negligence per se for plaintiff to enter the unlighted therapy room and attempt to locate the light switch on the wall. He was familiar with the club premises and knew there were toilet facilities in the men's room at the rear of the locker room; he knew that members using...