Marshall Field & Co. v. LeBosky

Mr. Presiding Justice Freeman delivered the opinion of the court. It is urged in behalf of appellant first, that the court erred in not sustaining the motion to exclude the plaintiff’s testimony on the ground of variance between the evidence and the declaration, in that the declaration simply alleges that the plaintiff was injured by tripping and slipping on the stairway, whereas her testimony shows that she was injured by falling on the stairway and down to the floor; second, that the evidence fails to show appellant guilty of negligence, or that appellee was not guilty of contributory negligence, and that the court erred therefore in denying appellant’s motion to direct* the jury to find appellant not guilty. It is also insisted that there was error in giving and refusing instructions, in not submitting to the jury certain questions of fact as requested by appellant’s attorney, in rulings upon evidence, and that the damages are excessive. If it be true that the evidence does not sustain the charge of negligence against appellant, or that the accident was the result of contributory negligence on the part of appellee, it will be unnecessary to consider the other alleged errors assigned. There are three counts in the declaration. The first of these charges in substance that appellant negligently failed to provide a reasonably safe stairway “which was of a winding pattern” at the place where the accident occurred. The second count charges that the stairway was negligently permitted to be overcrowded with persons going up and down; and the third, that appellant negligently permitted the stairway to be and remain in a slippery and unsafe condition. The contention in behalf of appellee that the stairway was not reasonably safe, is based upon the arrangement of the steps at the two half turns, at the lower of which turns appellee states that she fell. By that construction, the four steps which constituted the half turn to the right when descending the stairs were much wider at the outer side of the stairway than the steps above and below them, but narrowed nearly to a point where they intersected the newel post at the inner side. Appellee states that she fell at the lower half turn, at or near this point of intersection. A witness called in her behalf, a builder -of forty years’ experience, testifies that the “general construction of the stairs was in good mechanical form,” with nothing peculiar about it at all. In this the testimony of the witness is in accord with common observation and experience. Probably most houses where stairs are necessary possess stairways of similar construction. They are found everywhere in buildings, ancient and modern. Persons using them are expected to tread on the broad portion of such steps, and not to attempt to find room for the feet at the post or center around which the stairs turn. The outer tread of these steps was in the case at bar made wider than the usual stair and obviously afforded a safe place over which to go up or down. There was nothing hidden nor concealed. There was plenty of light. Appellee’s attorneys ask, “Was the design of the stairway reasonably safe ?” So far as we discover, they do not attempt to 'answer their own question, but content themselves with urging that the verdict of the jury and the judgment of the trial court should conclude us on the point. If by this it is meant we must hold a stairway of such character to be negligently constructed, because the verdict of the jury and judgment of the court upon the whole case were in favor of appellee, we cannot concur in the contention. There are probably no stairs of whatever construction which do not call for care in their use. It is common experience that persons fall or slip on stairs where the steps are of uniform width, depth and height with straight descent, hand rails and all ordinary appliances. There is no evidence here tending to show that, properly used, steps of the construction employed in the case at bar are not as safe as others. In fact they are evidently more safe at the turn if properly used by reason of their greater width of tread at the outer portion of the half circle they describe, than the ordinary straight up and down stairs of narrower step or tread. There is language in Larkin v. O’Neill, 119 N. Y., 221, quoted with approval from Crafter v. Metropolitan Railway Co. (L. R. (I. C. P.) 300) which we deem in point, as follows: “The line must be drawn in these cases between suggestions and possible precautions, and evidence of actual negligence, such as ought reasonably and properly be left to a jury. It is difficult in some cases to determine where the line is to be drawn, but here I have no hesitation in saying that there was no evidence of negligence which could properly be left to the jury. There was nothing unusual in the construction of the staircase. The use of brass for protecting the edges of stairs and absence of a hand rail, which alone are relied on by the plaintiff, are by no means unusual in staircases of a similar description where the traffic is great. They were obvious to everyone using the stairs, and were well known to the plaintiff himself. The plaintiff' has no right to complain of the absence of accommodation of an unusual kind.” We are unaware of any authorities and none is called to our attention where it has been held that the owner or occupant of a building must provide a certain kind of stairway for use of persons desiring to go up and down, or be held guilty of negligence. It is no more negligence per se to use one of several ordinary and familiar forms of construction than others. In the use of appliances or machinery the law does not require a master to furnish for employees such appliances as are of the best character or absolutely safe, but to use reasonable and ordinary care and diligence in that respect. I. C. R. R. Co. v. Sanders, 166 Ill., 270, 278; Mattson v. Qualey Const’n Co., 90 Ill. App., 260-263. Upon like reasoning it does not appear why. one owning or building a house or store should under ordinary circumstances be required to furnish stairs which shall be absolutely safe, or such as some third party may after an accident conclude might have been better. As above stated, probably no stairs are absolutely safe. We know of none upon which persons using them without due care can be guaranteed against slipping or falling. The stairway here in question was of a very common and familiar form of construction and, so far as appears, perfect of its kind. There is no evidence of negligence in these respects in the present case and whatever might be said in reference to such construction under other conditions, we find no evidence of negligence in its use in the case at bar. The second averment of negligence made in the declaration charges that appellant negligently permitted the stairway to be “overcrowded with persons going up and down the same by reason whereof the plaintiff * * * was necessarily and unavoidably crowded and forced upon and against the narrow portion thereof, by reason whereof she necessarily and unavoidably tripped and slipped on said stairway.” This averment is not supported by the testimony. Plaintiff states that she was “crowded to the narrow portion of the stairway by reason of people coming up”; that she “was pushed and fell”; that “they brushed hy me. They did not push me like that. They came in contact with me with their clothes, and crowded me over as far as they could as far as I could go”; that “there were several persons coming up.” Her companion who was behind her in going down the stairs says that “at the second turn there was a crowd coming up, and all of a sudden, the first thing I knew she was lying at the bottom of the stairs.” It is apparent from her testimony that appellee was not physically pushed by any of this so called “crowd” which appellee says consisted of “several persons.” She merely stepped to the right to allow these persons to pass her. She testifies further: “At the time they crowded me I was at the turn, at the last turn going to the basement, the lowest turn. I was standing on the steps before the turn, I believe the last step before the turn. That is not the step I slipped on. I slipped on the first step on the lowest turn, the first one that is narrowed.” The purport of this is that she was crowded to the right, or rather stepped in that' direction to keep from contact with the garments of persons coming up tlie stairs when she was on the last step before the turn, a step of the usual width of tread, upon which had she simply stood still until the persons to avoid whom she had moved over that way had passed her, she would have remained in perfect safety. She did not, according to her own version, slip “at the time they crowded me,” but afterward when she tried to put her foot on the narrow part of the next step, “the first one that narrowed.” She states that “before I tripped or slipped at all, I was as far,to the right as I could go on the turn there.” It is apparent therefore that she was not, as the declaration charges, “necessarily and unavoidably crowded and forced upon and against the narrow portion” of the stairway. It is apparent moreover from this testimony that if the stairway was “ovércrowded,” the evidence fails to show the alleged fact. The third charge is that appellant negligently permitted the stairway to be and remain in a slippery and unsafe condition. Hpon this point appellee’s testimony shows the reason she fell to have been that she put her foot on the narrow part where the treadway of the first of the steps “narrowed,” as she says, at the turn. Her statement is “there was not enough space to hold my foot—the tread was so.narrow and the steps were wet and slippery.” If there was not enough space to hold her foot, where she seems to have deliberately placed it, that fact sufficiently accounts for her falling. She herself had come in from the street through slush and snow without rubbers. The evidence tends to show that the stairs were wet with moisture brought in by customers’ feet and garments from the street. This condition was perfectly apparent to appellee. It does not appear that it was owing to any lack of ordinary and reasonable care on the part of appellant, nor that appellant had any knowledge of such alleged condition. The stairs were, it may be, wet, just as appellee’s shoes were wet, and there is nothing in the evidence to warrant the conclusion that the one or the other was the cause of the injury complained of. Appellee insists that I. C. R. R. Co. v. Keegan, 210 Ill., 150-156, is decisive of this case in favor of appellee. In this we cannot concur. It was undoubtedly “the duty of the appellant to use reasonable care to keep the said stairway in a reasonably safe condition,” but in the case at bar there is no evidence tending to show that this duty had not been complied with. There is no evidence as to how wet the stairs were, nor evidence tending to show except by inference that they were rendered unsafe thereby, nor as to how long they had been in that condition, nor that appellant had notice of such alleged unsafe condition, and it is clear from the evidence the injury was not occasioned by such alleged moisture. It affirmatively appears from the plaintiff’s testimony that her fall was owing to her attempting to place her foot where she says there was not room for it. Appellee testifies that she passed the first turn walking on the wide part of the steps that constituted it; that “after I had made the first turn and started to go straight north down those stairs, I saw there was another turn I would have to make.” There were ten of these steps leading “straight north down the stairs,” before she reached the first of the four steps constituting the second turn. This lower turn was precisely like the upper one she had passed. The conditions were the same in all respects, both as to construction, dampness and in all other respects. The only difference according to her evidence is that when she was “near the turn” she “first saw the people coming up. I may have been a step or so ahead of it. There were several persons coming up.” This evidence tends to show that appellee saw these persons coming up from below in ample time to protect herself by simply standing still and waiting. She was under no necessity of proceeding until they had passed. . Instead of waiting she voluntarily stepped over toward the narrow ends of the steps composing the turn, apparently to avoid brushing against them, and continued going down, putting her feet on the narrow treads, which she says she saw and avoided at the prior turn. This sufficiently accounts for her fall. At all events the evidence fails to support the charge that appellee was injured in consequence of negligence averred in the declaration. In view of this conclusion it is unnecessary to consider other questions presented in the briefs. The judgment of the Superior Court must be reversed, with a finding of facts. Reversed, with finding of facts. He. Justice Bakes, dissenting.