Murphy v. Brichler

• Decision Date: 09 March 1940
• Docket Number: Ag. No. 22.
• Citation: 27 N.E.2d 1003,305 Ill.App. 6
• Parties: MURPHY v. BRICHLER.
• Court: United States Appellate Court of Illinois

305 Ill.App. 6

27 N.E.2d 1003

MURPHY

v.BRICHLER.

Ag. No. 22.

Appellate Court of Illinois, Fourth District.

March 9, 1940.

Appeal from Circuit Court, St. Clair County; L. Potter Harriss, Judge.

Personal injury action by Ethel Murphy against George W. Brichler. Judgment for plaintiff, and defendant appeals.

Affirmed.

DADY, J., dissenting. Kramer, Campbell, Costello & Wiechert, of East St. Louis, for appellant.

Beasley & Zulley, of East St. Louis, for appellee.

CULBERTSON, Justice.

Appellee, Ethel Murphy (hereinafter referred to as plaintiff), recovered judgment in the Circuit Court of St. Clair County in the sum of $5,000, against appellant, George W. Brichler (hereinafter called defendant), for personal injuries sustained by plaintiff as the result of a fall into a cellar opening, which occurred on premises owned by the defendant, but occupied by tenants.

The complaint alleged in substance (as is also shown by the facts), that the premises owned by defendant consisted of a two-story brick building located in the City of East St. Louis; that the first floor was occupied by a tenant who operated a tavern, which was used by the public; and that the second floor consisted of living quarters, which were occupied by another tenant. The defendant reserved the garages in the rear of the building for his own use. It was alleged in the complaint that he had constructed a certain trapdoor, which opened into the concrete porch (in the rear of the premises which he rented to tenants), for access to the basement by means of a stairway; and it was further alleged that the porch, trapdoor, and stairway were reserved by the defendant under his control and possession for the use of his tenants as a common passageway and approach by such tenants, and by members of the public generally, who patronized the tavern located on the first floor of the premises.

There were allegations of negligence in failing to provide a light, or guard rail near the trapdoor on the rear porch; and it was further alleged that the trapdoor in the rear porch remained open and unguarded, and that all of such facts were known to the defendant and were not known to the plaintiff prior to the time of the injury. It was also disclosed by the evidence that the defendant maintained grass and flowers, in the front of the building which was leased to the tenants, which grass and flowers were cultivated by the defendant.

The defendant testified that the basement, to which the trapdoor led, was “for the use of the whole outfit.” It was shown that both tenants used the cellar door and steps, and it was also shown that members of the general public entered the tavern from the rear door where the concrete porch was located. The evidence likewise disclosed that the defendant had placed a row of posts along the property line back of the tavern to keep people from driving over that portion of the yard. The defendant also testified that after the accident he placed a lock upon the cellar door and kept the key in his place of business. It was expressly stated, at the time such evidence was presented, that the evidence was being offered for the limited purpose of establishing that defendant retained control of such stairway and trapdoor which was used in common by the tenants.

It was further shown by the evidence that the plaintiff on the night of August 6, 1937, after having visited with her husband in the tavern (in which she did not partake of any alcoholic liquors), left by the rear door and fell into the open trapdoor, as the result of which she sustained serious injuries. One witness testified to the effect that around six o'clock in the evening prior to the accident, the defendant had entered the basement through the trapdoor and had left the cellar door open. It was stated that such cellar door was not closed until after the accident had occurred. Defendant denied that he had been in the basement, or had left the trapdoor open. The plaintiff testified that as she left the tavern along the concrete porch, she intended to cross an adjoining vacant lot to join her daughter. She stated that it was dark and that she was unable to see that the trapdoor was open, and that after she had taken a few steps upon leaving the rear of the premises, she had fallen into the open hole.

Defendant presented motions for directed verdict at the close of plaintiff's evidence, and at the close of all the evidence. Such motions were denied, and the jury which heard the case returned a verdict for plaintiff in the sum of $5,000. Motion for new trial was likewise denied, and judgment was entered for plaintiff on the verdict.

Defendant contends that the Trial Court erred in refusing to direct a verdict for the defendant, and against the plaintiff, at the close of all the evidence, for reasons which are generally summarized as being, that plaintiff had failed to prove her case by the quantum of evidence required by law; that there was no duty or breach of any duty by defendant to plaintiff; and, that in any event there was not sufficient evidence of negligence on part of the defendant, or such negligence as contributed in whole, or in part, to the injury. General assignments that the verdict was contrary to law and the manifest weight of the evidence are, likewise, presented, as well as certain objections to the admission of testimony on behalf of plaintiff, and to the giving of instructions on behalf of plaintiff, which will be considered later in this opinion.

It is first contended by defendant that he, as owner of the premises, is not responsible for the injuries to plaintiff, but that if anyone on the premises was responsible, the responsibility was that of his tenants. This contention cannot be maintained under the facts. It has long been the settled law of this State that the landlord who rents various parts of a building to different tenants and maintains control of the porches, stairs, porchways, hallways, or other means of approach to the several portions of the building, for the common use of his tenants, has the duty to use reasonable care to keep the premises in a reasonably safe condition, and he is liable for an injury which results to persons lawfully in such building from his failure to perform such duty. Payne et al. v. Irvin, 144 Ill. 482, 33 N.E. 756;Mueller v. Phelps, 252 Ill. 630, 633, 97 N.E. 228;Schoninger Co. v. Mann, 219 Ill. 242, 76 N.E. 354, 3 L.R.A.,N.S., 1097. Under the evidence in this case it cannot be said, as a matter of law, that the defendant was not under a duty to plaintiff, or that defendant was not guilty of any negligence proximately causing the injury sustained by plaintiff. The evidence presented on the trial tended to sustain the allegations of plaintiff's complaint as to the liability of defendant, and this Court may not now reverse the conclusion of the jury, as a matter of law, under the evidence, simply because the evidence on this subject was conflicting.

The defendant, likewise, contends that the plaintiff was guilty of contributory negligence, as a matter of law, for the reason that she left the premises by way of the rear door when there was available a front and side door for public use, and on the basis of various other alleged specific omissions to exercise due care and caution for her own safety. The evidence does not justify this Court in concluding, as a matter of law, that plaintiff was guilty of contributory negligence. Plaintiff would not be required to be on the lookout for open trapdoors even though she may have known of the existence of such trapdoors (Sprengel v. Schroeder, 203 Ill.App. 213, 215; Schoninger Co. v. Mann, supra), and she was, likewise, not charged with anticipating dangers and negligent conditions, but had the right to assume that defendant had done his duty to give proper warning of hidden dangers. Pollard v. Broadway Central Hotel Corp., 353 Ill. 312, 320, 187 N.E. 487. Under the evidence, as presented in the trial of this case, the question of contributory negligence, if any, on part of the plaintiff, was exclusively a question for the jury. Pauckner v. Wakem, 231 Ill. 276, 282, 83 N.E. 202, 14 L.R.A.,N.S., 1118; Mueller v. Phelps, supra.

It is, likewise, contended by defendant that the Court erred in admitting evidence to the effect that defendant put a lock on the cellar door after the accident occurred, and kept the key in his office in the undertaking parlor, and, likewise, that he thereafter put a railing around the trapdoor. A portion of such evidence was presented over objection on part of defendant, but it was expressly limited, and offered for the purpose of establishing the fact of control of the premises. Under such circumstances it was not error to present such evidence. Kellems v. Schiele, 297 Ill.App. 388, 394, 17 N.E.2d 604.

[6] Defendant also contends that the receipt in...