Lembeck v. Brady

• Decision Date: 29 December 1966
• Docket Number: Gen. No. 66--21
• Citation: 78 Ill.App.2d 146,222 N.E.2d 704
• Parties: Darlene LEMBECK, Plaintiff-Appellee, v. Juanita Hundemer BRADY, d/b/a Nita's Place, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 704

222 N.E.2d 704

78 Ill.App.2d 146

Darlene LEMBECK, Plaintiff-Appellee, v. Juanita Hundemer BRADY, d/b/a Nita's Place, Defendant-Appellant.

Gen. No. 66--21.

Appellate Court of Illinois, Third District.

Dec. 29, 1966.

Rehearing Denied Jan. 24, 1967.

Hubbard, Hubbard, O'Brien & Hall, Chicago, Kavanagh, Scully, Sudow & White, Peoria, for appellant.

Knoblock & Ott, Peoria, for appellee.

STOUDER, Justice.

This is an appeal from a judgment for $82,500.00 entered by the Circuit Court of Peoria County on a jury verdict in favor of Plaintiff-Appellee, Darene Lembeck, on her claim for personal injuries against Juanita Hundemer Brady, d/b/a Nita's Place, Defendant-Appellant.

On Saturday afternoon, July 13, 1963 at about 3:30 P.M. Plaintiff met Joseph Klepfer a friend. The latter invited Plaintiff to have a drink and for that purpose they went to Nita's Place, a tavern operated by Defendant. Defendant was tending bar at the time of the incident. Plaintiff and her companion seated themselves at the bar, Plaintiff ordering beer. During the absence of her companion, Klepfer, from the bar, Robert Petzing, who was seated several stools away, passed a note to Plaintiff. Shortly after Plaintiff had commenced her second beer she left the bar to go to the ladies' room, her companion testifying that she had asked Defendant for directions although the Defendant did not recall such request. To get to the ladies' rest room Plaintiff went through an archway with double louvered doors into a room where a stairwell was located. The room was about 14 feet by 15 feet and contained a pool table, two lounges, two tables for customers and several chairs. The ladies' rest room was partitioned off to the rear or north. The stairhead was at the east side of the room toward the rear. On the partition for the entrance to the ladies' room toward the rear was a sign saying 'ladies' with direction arrows pointing in two different directions and on the lattice work over the west, waist-high wall of the stairwell, was a sign 'Watch your step--Stairway'. There were lights in the ladies' room, a bare, 100 watt bulb in the ceiling over the areaway in front of the stairhead, a 100 watt bulb in the conical-flared shade over the pool table, a fluorescent tube running north and south up against the ceiling and a light in the basement that would light up the bottom of the stairway. There were no outside windows in the room. Shortly after Plaintiff had left the bar, the Defendant heard a peculiar sound coming from the direction of the ladies' rest room and going to the top of the stairs discovered Plaintiff lying at the bottom of the stairs.

Defendant testified that when she opened her establishment at about 2 P.M. she had turned on the lights over the pool table and the lights at the top and bottom of the stairway the same being operated on the same switch. Defendant testified that these lights were on at the time she discovered Plaintiff. Witnesses Klepfer, Petzing and a deputy sheriff, who arrived somewhat later, testified that the room was dark although they had no difficulty going through the room and that there was a light on at the bottom of the stairs. Plaintiff testified that she had not previously been in Defendant's establishment and that she had no memory of anything that occurred after she left the bar.

Three physicians testified to Plaintiff's injuries. She sustained a broken collar bone and skull fracture causing aphasia and loss of sense of taste and smell. Since the incident she has had convulsions or seizures resulting in dizziness, headaches, unconsciousness and loss of speech which symptoms are controllable by anti-convulsants.

Defendant in seeking a reversal of the judgment argues that the evidence is insufficient to support the verdict of the jury and that prejudicial misconduct of Plaintiff's counsel resulted in the denial of a fair trial to Defendant.

Defendant argues the evidence shows as a matter of law, that Plaintiff was contributorily negligent or that Defendant was not negligent. Defendant asserts that if the room was dark Plaintiff was contributorily negligent by entering such room and that if the room was well lighted Plaintiff was negligent in failing to heed the warning of the posted signs. Defendant relies on cases such as Hudson et al. v. Church of the Holy Trinity, 250 N.Y. 513, 166 N.E. 306 and Dunn v. White Plains Housing Authority, 7 N.Y.2d 944, 198 N.Y.S2d 315, 165 N.E.2d 878, in which cases the court held that the Plaintiff's entry into darkened premises constituted negligence as a matter of law. However in such cases the dark condition of the premises was not controverted. In the instant case there is no question that the ladies' rest room was maintained for the convenience of patrons and the lighting conditions in the room as well as at the top of the stairs were controverted. It is also apparent from the evidence that the clarity and visibility of the signs indicating the rest room and stairway were controverted facts. Under such circumstances the issue of Plaintiff's contributory negligence was an issue properly submitted to and resolved by the jury. Geraghty v. Burr Oak Lanes, 5 Ill.2d 153, 125 N.E.2d 47, Burke v. Piper's Super Service Station, 312 Ill.App. 656, 38 N.E.2d 785. The conflict in the evidence concerning the adequacy of the lighting and the visibility of the signs, made such facts also matters for the jury's determination and there was sufficient evidence to support its conclusions of Defendant's negligence.

At a pre-trial conference, Plaintiff's counsel informed the court he had learned from a pre-trial deposition that Defendant, in the course of her duties of tending bar, had overheard a conversation between Plaintiff and another party in which Plaintiff had made a statement to such party which could be interpreted as either...