Todd v. S.S. Kresge Co.

• Decision Date: 06 February 1940
• Docket Number: Gen. No. 9485.
• Citation: 24 N.E.2d 899,303 Ill.App. 89
• Parties: TODD v. S. S. KRESGE CO.
• Court: United States Appellate Court of Illinois

303 Ill.App. 89

24 N.E.2d 899

TODD

v.S. S. KRESGE CO.

Gen. No. 9485.

Appellate Court of Illinois, Second District.

Dec. 15, 1939.

Rehearing Denied Feb. 6, 1940.

Appeal from Circuit Court, Kane County; Frank W. Shepherd, Judge.

Action by Nellie J. Todd against S. S. Kresge Company for personal injuries. Nellie J. Todd having died, Roscoe J. Todd, administrator of the estate of Nellie J. Todd, deceased, was substituted as plaintiff, and an amended complaint was filed. From a judgment for plaintiff, defendant appeals.

Reversed and remanded.

Ellis & Hamilton, of Elgin, for appellant.

Charles G. Seidel and Ernest W. Akemann, both of Elgin, for appellee.

HUFFMAN, Justice.

This suit was originally commenced by Nellie J. Todd, deceased, to recover for personal injuries received by a swinging door at the entrance to a store operated by appellant. The accident happened on October 16, 1937. Suit was brought by the injured party on February 8, 1938. Plaintiff in the suit died June 15, 1938. Appellee administrator was substituted as plaintiff, and an amended complaint filed. A trial by jury resulted in a verdict for $7,500. Appellant prosecutes this appeal from judgment rendered thereon.

On the evening of October 16, 1937, the deceased and her daughter went to appellant's store in the city of Elgin. The entrance to the store consisted of double swinging doors located at the middle of the store front. On each side of the doors were display windows. The entrance from the sidewalk to the doors was tiled and about 9 feet in width at the sidewalk line. This entranceway narrowed to the width of the swinging doors. The doors had a total width of slightly over 5 feet and set about 4 1/2 feet back from the sidewalk line. They were the common type of swinging doors used at the entrance of business concerns of this character. The doors swung either way, that is, both inwardly and outwardly. They were equipped with double acting spring hinges which permitted them to thus swing in either direction. They were also equipped with door checks at the top, which served to stop them at the proper place when swinging closed.

On the evening in question, the deceased and her daughter went to appellant's store. The daughter states that she entered the store first and through the righthand door; that the door was then swung inwardly; that it was standing open in this manner; that after she entered the store and had proceeded a few feet, she turned to look back toward her mother, at which time she observed the door swinging to a closed position. The deceased was carrying her purse and several merchandise bundles. As the north door swung to a closed position the daughter observed her mother fall. It is the contention of the daughter that the door in swinging shut, struck her mother, knocking her to the floor of the entranceway. The deceased in her fall sustained a broken hip. She was 68 years old and afflicted with pernicious anemia, from which disease she died. Following her injury, she was removed to the hospital. The testimony of the surgeon is to the effect that she had a fair recovery from the fracture. Her death was in no way connected with the accident. The damages sought in this suit are based solely upon the injuries received from the accident.

The daughter in her testimony states that she and her mother had been frequent customers at this store and were acquainted with the operation of the swinging doors. She states that she noticed no difference in their operation at the times she used them. She says that on the evening in question the north door was swung inwardly and was standing open in that position. Two witnesses testify for appellee, that prior to the date of the accident, they had observed the doors at appellant's store opened inwardly and standing open in such position.

The manager of the store was called as a witness for appellee, under section 60 of the Civil Practice Act, Ill.Rev.Stat.1939, c. 110, § 184, and examined in detail regarding the doors, their mechanical equipment, and manner of operation. It appears from his testimony that they were equipped to swing both inwardly and outwardly such as is common to entrances of this character. He further states that they were not equipped to remain standing open when swung inwardly, and that upon being swung or pushed open inwardly, they would by virtue of the mechanical equipment controlling their operation, return to a closed position. This witness further states that the doors were equipped on the outside, at a place near the bottom, with a device which would enable them to be opened outwardly and fastened so that they would remain open; but that there was no such equipment or device whereby they could be opened inwardly and caused to remain in that position; that in order for this to be done, the mechanical apparatus connected with their operation would have to be dismantled. He says that at the time in question, the mechanical equipment of the doors was not so dismantled and that it was working in the usual and customary manner. This witness had been manager of this store for about two and one half years prior to the accident. He states that the doors and the equipment connected with their operation were the same as when he became manager; that they were in the same condition; and that they were checked frequently.

The manager of the store also testified for appellant. He states that the doors on the evening in question were not standing open at any time, so far as he knew. He again asserts that the mechanism controlling their operation did not permit them to stand open of their own accord. He further states, upon information obtained from his records, that these doors were used approximately 800,000 times a year since he had become manager of the store, and that this was the first accident of this kind of which he had any knowledge.

Several witnesses testified for appellant, who were present and saw the accident. The first of these was James Salisbury, who by occupation is a bookkeeper. His wife was employed at this store on the evening of the accident. He arrived there at about ten minutes before 9, to meet her. He states it had been raining and the weather was chilly; that he did not go into the store, but stopped at the entrance and remained outside. He says he had been standing at the entrance to the store about ten minutes before the accident occurred; that during this time he saw people enter the store; and that he saw the accident happen to Mrs. Todd. He states he was standing, facing the entrance to the store and directly in front of same; that when Mrs. Todd was about a foot from the doorway, and about to enter through the north door, he saw her throw up her arms and saw her packages drop, whereupon she fell to the south and against the south show window and slumped upon the tile entranceway. This witness was the first person to reach her. He states that she was in the entranceway leading from the sidewalk to the doors and about a foot from the doors. He says that he saw the doors just prior to her approaching the entrance, that they were working and that neither of them were standing in an open position. He states that as Mrs. Todd approached the entrance, the north door had been opened by another person and was in the act of closing itself just as she reached her position before it, whereupon she threw up her hands in the manner above described. He says that at the time she threw up her arms, the north door was just coming to a closed position; that he did not see it strike her; and that she was about one step from the door when she threw up her arms and fell. This witness further states that three ladies entered the door through which Mrs. Todd was about to pass, immediately before her, and that following these ladies, Mrs. Todd's daughter passed through the door. This witness picked up the packages for Mrs. Todd after the accident. She was placed in a taxi and taken away. He states she fell in the entranceway before she had reached the doorway.

The witness, Dorell Thelander, was at the store on the evening in question. He is a clerk for the Milwaukee Ry. Co. and works in Chicago. He was at the store waiting for his wife who was employed there at this time. He went to the store at about ten minutes before 9. He states that he saw the door swing in and out; that he knew Miss Todd and her mother by sight; that during the time he was standing there waiting for the store to close, neither of the doors were open except when someone was passing through them. He says he saw Miss Todd enter the store and that she was 10 feet from him; that he saw her come to the door and that there were two other ladies directly behind her, who entered. He states Miss Todd walked down the south aisle of the store to a distance of some 12 or 14 feet. He says he saw...