Plodzien v. Segool

• Decision Date: 23 March 1942
• Docket Number: Gen. No. 41834.
• Citation: 40 N.E.2d 783,314 Ill.App. 40
• Parties: PLODZIEN v. SEGOOL ET AL.
• Court: United States Appellate Court of Illinois

314 Ill.App. 40

40 N.E.2d 783

PLODZIEN

v.SEGOOL ET AL.

Gen. No. 41834.

Appellate Court of Illinois, First District, First Division.

March 23, 1942.

Appeal from Circuit Court, Cook County; Roy D. Henson, Judge.

Action by Joseph Plodzien, a minor, by his father and next friend, Thomas Plodzien, against Leona M. Segool and another for personal injuries. Judgment for defendants, and plaintiff appeals.

Reversed and remanded. Thaddeus C. Toudor and Irving L. Lansing, both of Chicago, for appellant.

George C. Bliss, of Chicago, for appellees.

O'CONNOR, Justice.

Joseph Plodzien, a minor by his next friend, brought an action against defendants to recover damages for personal injuries claimed to have been sustained by him through defendants' negligence. At the close of plaintiff's case there was a directed verdict for defendants and plaintiff appeals.

The record discloses that about 4 o'clock in the afternoon of July 31, 1936, plaintiff, a boy about 14 years of age, and three companions, left the rear of plaintiff's home (where he lived with his parents, on Richmond street, a north and south street 4 or 5 doors north of Walton street, an east and west street) and walked south in the alley in the rear of his home on their way to a nearby park. Plaintiff was a few steps ahead of his companions and as he passed in the rear of a building located on the west side of the alley, a piano plate which was resting on rollers and leaning against the fence in the rear of that property, rolled or fell on his foot injuring him. The piano plate was four feet by six feet and weighed about 400 pounds. Plaintiff charged that defendant Leona M. Segool owned, and defendant, Baird & Warner, a corporation, managed the property at the rear of which the plate was leaning against the fence and that as a result of defendants' negligence plaintiff was injured.

There was some evidence to sustain these contentions and further evidence that, a few days before the accident, John Bunyan, the janitor of the building in question, had been seen placing the piano plate in the rear of the premises where it was when it fell or rolled on plaintiff's foot.

Counsel for defendants contends it was alleged in the complaint Leona M. Segool was the owner of the premises and defendant, Baird & Warner, a corporation, was engaged in the business of property management and was supervising and controlling the premises, acting as agent for Leona M. Segool. They say that “Nowhere in the record is there any evidence that proves or tends to prove the material allegations in the complaint above referred to, which allegations were denied by the defendants in their answer.” The contention is that in these circumstances the verdict in defendants' favor was properly directed.

Where a motion is made at the close of plaintiff's case to direct a verdict for defendants, if there is no evidence, or but a scintilla of evidence tending to prove the material allegations of the complaint, the motion should be allowed and a verdict directed but if there is any evidence viewed most strongly in plaintiff's favor which tends to prove the material allegations of the complaint, the motion must be denied. Libby, McNeill & Libby v. Cook, 222 Ill. 206, 78 N.E. 599. It is also the law that where, in such a situation, uncertainty arises as to the inferences that may legitimately be drawn from the evidence so that fair-minded men may honestly draw different conclusions, the question is not one of law but one of fact to be settled by the jury. Denny v. Goldblatt, 298 Ill.App. 325, 18 N.E.2d 555;Chicago & N. W. Ry. Co. v. Hansen, 166 Ill. 623, 46 N.E. 1071;Moore v. Rosenmond, 238 N.Y. 356, 144 N.E. 639;Kavale v. Morton Salt Co., 242 Ill.App. 205;Norris v. Ill. Cen. R. R. Co., 88 Ill.App. 614;Richmond & Danville R. R. v. Powers, 149 U.S. 43, 13 S.Ct. 748, 37 L.Ed. 642;Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720;Best v. Dist. of Columbia, 291 U.S. 411, 54 S.Ct. 487, 78 L.Ed. 882. And as stated by the Supreme court of the United States in Union Pac. R. R. Co. v. Huxoll, 245 U.S. 535, 38 S.Ct. 187, 62 L.Ed. 455, in a negligence case demonstration is not required.

In the instant case plaintiff alleged that defendant, Leona M. Segool, was the owner of the building which was being managed for her by defendant, Baird & Warner, a corporation, acting as her agent. Defendants June 6, 1938, filed their answer admitting these allegations. Afterward, October 25, 1939, defendants by leave of court, filed an amended answer in which they denied these allegations. On the trial plaintiff offered in evidence defendants' original answer. We think this answer was properly admitted. Bennett v. Auditorium Bldg. Corp., 299 Ill.App. 139, 19 N.E.2d 626;People ex rel. Nelson v. Cent.Mfg. Dist. Bank, 306 Ill.App. 15, 28 N.E.2d 154.

We think there is some evidence tending to support the material allegations of the complaint and the court erred in directing a verdict. Counsel for defendants further says that “The law is that a presumption can not be based upon a presumption.” Although stated in many cases this is not the law. There never was such orthodox rule. Vol 1, Wigmore on Evidence 3rd ed. § 41; Burns v. Prud. Ins. Co. of Amer. 283 Ill.App. 442;Sturm v. Emp. Liability Assur. Corp., 212 Ill.App. 354;Paoli v. Loyal Prot. Ins. Co. 289 Ill.App. 87, 6 N.E.2d 909;Welsch v. Frusch L. & P. Co., 197 Iowa 1012, 193 N.W. 427;Devine v. Delano, 272 Ill. 166, 111 N.E. 742, Ann.Cas.1918A, 689;Denny v. Goldblatt, 298 Ill.App. 325, 18 N.E.2d 555; Vol. 1 Jones on Evidence 2nd ed. § 364; Chesapeake & O. Ry. Co. v. Ware, 122 Va. 246, 95 S.E. 183.

Professor Wigmore, for many years Dean of the Northwestern University School of Law, now Dean Emeritus of the same school, in his excellent work on evidence in § 41, of the 3rd ed. says: “Sec. 41. Circumstantial Evidence may...