Denny v. Goldblatt Bros., Inc.

Citation298 Ill.App. 325,18 N.E.2d 555
Decision Date16 January 1939
Docket NumberGen. No. 40267.
CourtUnited States Appellate Court of Illinois


Appeal from Circuit Court, Cook County; Daniel P. Trude, Judge.

Personal injury action by Doris Denny against Goldblatt Bros., Inc. From a judgment for defendant notwithstanding verdict for plaintiff, plaintiff appeals.

Judgment reversed and judgment entered for plaintiff. C. J. Morgan, of Chicago, for appellant.

Philip A. Weinstein, of Chicago, for appellee.

O'CONNOR, Justice.

Plaintiff brought an action against defendant to recover damages for personal injuries claimed to have been sustained by her in slipping and falling on some fresh vomitus that some unknown person ejected, or milk that was spilled, in the revolving door which was located inside defendant's large retail store on State, Jackson and Van Buren streets, Chicago. She claimed defendant was negligent in failing to remove the vomitus or milk. At the close of all the evidence defendant moved for a directed verdict which the court reserved. Afterward the jury rendered their verdict in plaintiff's favor for $2,000; judgment was entered on the verdict and within 10 days thereafter defendant filed its motions for a new trial and for a judgment notwithstanding the verdict. Afterward the court sustained the latter motion, entered judgment against plaintiff for costs and she prosecutes this appeal.

The record discloses that on March 12, 1937, which was shortly after defendant had purchased the large retail store located on State street as above stated, defendant had what is designated as its formal opening of the store. The front of the store was gaily decorated, there was a parade, and many guests were entertained, including members of various civic organizations. A great many people came to the store and counsel for plaintiff says it was perhaps the biggest day in the history of the store.

After plaintiff had finished her day's work at Field's at 5:30, she met her husband, they took a walk and arrived at defendant's store about 6 o'clock, entering the store on the Jackson street side. After making a purchase on the first floor they walked through the store which was crowded and made another purchase. They then walked down the stairs into the basement where another purchase was made; they started to leave the store about 6:30, walked up the steps to the mezzanine floor which was about half way between the basement and first floors and started through a revolving door which led into a restaurant on the mezzanine floor. As plaintiff was passing through the revolving door she slipped on some vomitus or milk, fell and was injured. She did not look at the floor until after she slipped and fell, when she discovered the vomitus. Some men came to her assistance and she was taken to the medical bureau in the store and examined by a doctor. A nurse was also in attendance. The doctor found an “area of redness and tenderness about the size of a silver dollar piece located over the posterior or back portion of the left hip joint”; she stayed there about five minutes and then left with her husband. Afterward she was treated by her family physician who testified that he found a contusion of the “upper outer aspect of the left hip--a fracture separation of the upper rim of the left hip socket--left sacro-iliac sprain and traumatic sciatica”, that the “disability is the injury to the lower end of the spine”; that in his opinion plaintiff has some permanent disability. His charge was $32.

Edward J. Duffy, called by plaintiff, testified that he was a millwright and carpenter by trade; that he visited defendant's store on the opening day and went to the various floors; that he ate in the cafeteria located on the mezzanine floor near the north end of the store; that from three to five minutes before he saw plaintiff slip and fall he went through the same revolving door and that he slipped and almost fell “on some stuff that looked like an emulsion--it looked like a bottle of cream or milk” that was spilled there. That after passing through the door he was cleaning his clothes of the emulsion or milk and while doing so saw plaintiff slip and fall coming through the door.

Plaintiff contends that since judgment was entered on the verdict when it was returned by the jury, the court was without authority to sustain defendant's motion which was not filed until a few days afterward--that such motion can only properly be made before the judgment is entered. In support of this, counsel quote Par. (3)a, sec. 68 of the Civil Practice Act, chap. 110, § 192, par. (3)a, Ill.Rev.Stat.1937, while defendant's counsel quote par. (1) of the same section.

We think the court by virtue of par. (1) was authorized to pass on defendant's motion for a judgment notwithstanding the verdict although a judgment had theretofore been entered on the verdict. That paragraph provides that where a general verdict is returned, the court shall order the same entered of record “and if either party may wish to move for a new trial or in arrest of judgment, or for a judgment notwithstanding the verdict, he shall, before final judgment be entered, or within ten days thereafter, or within such time as the court may allow on motion made within such ten days, by himself or counsel, file the points in writing, particularly specifying the grounds of such motion, and final judgment and execution thereon shall thereupon be stayed until such motion can be heard by the court. The time for appeal from such judgment shall not begin to run until the court shall rule upon the motion.”

Paragraph (3)a of sec. 68 provides that in all civil actions if either party shall, at the close of the testimony and before the case is submitted to the jury, request the court for a directed verdict, the court may reserve his decision and submit the case to the jury under proper instructions. That after the case is thus submitted to the jury “or after receiving and recording the verdict of the jury and before judgment is entered in said case, the court may hear arguments of counsel for and against said request”. But in all cases shall receive and record the verdict of the jury as rendered. If the court shall then decide as a matter of law that the party requesting the verdict was entitled thereto, the court shall enter its decision on the record notwithstanding the verdict. We think under the provisions of the two paragraphs quoted from, the court is authorized to enter judgment notwithstanding the verdict whether made before or after judgment has been entered on the verdict provided the requirements of the section are complied with. The practice followed in the instant case was the same as that followed in Hill v. Richardson, 281 Ill.App. 75.

Counsel for plaintiff further contends that even if the trial court had jurisdiction to sustain defendant's motion for a judgment notwithstanding the verdict, the action of the court in allowing the motion was unwarranted because the questions whether plaintiff was in the exercise of due care for her own safety and whether defendant was guilty of negligence which proximately contributed to the injuries complained of were properly questions for the jury.

In discussing this question, counsel for defendant says “There is no evidence tending to show that the defendant had any actual or constructive notice of the presence of the vomitus”; that “Ordinarily questions of negligence and notice are exclusively for the jury, yet when there is no competent evidence in the case that fairly tends to prove the charges laid in the complaint or when the evidence is considered with all reasonable inference drawn from it in its aspects most favorable to the plaintiff against whom the motion is directed and there is a total failure to prove one or more necessary elements of the case, then the questions of negligence and notice are no longer for the jury.” In support of this proposition it is argued that the undisputed evidence shows that some person had vomited inside the space of the revolving door and that defendant had nothing to do with the creation of the condition that caused the accident; that the door was properly constructed and the entry-way well lighted; that the only evidence as to the length of time the entry was in the condition complained of is that of the witness Duffy who testified that he walked through the revolving door from three to five minutes before plaintiff slipped and fell; that he saw “some stuff that looked like an emulsion--it looked like a bottle of cream or milk” that had been spilled and that there is no evidence that defendant had knowledge of the existence of the vomitus or milk on the floor.

Edward Zelenka, called by defendant, testified that he was the porter assigned to that part of the store where the accident...

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