Koehler v. La Salle Turn Verein

Mr. Justice Gridley delivered the opinion of the court. It is contended by counsel for the defendant that, under the facts of this case, if anyone is liable for. the injuries sustained by plaintiff it is the Wandrie Bowling Club and not the defendant. It is argued, in substance, that the defendant made a verbal lease of the premises to the Wandrie Club for the night of April 22, 1911; that on that night the relation of landlord and tenant existed between defendant and the Club; that at the time of making the lease nothing was said as to the condition of the premises and the Club took the premises as it found them; that the evidence does not disclose that at the time of making the lease or at any time prior to the accident the defendant knew, or by the exercise of ordinary care might have known, that the trapdoor was in a defective condition; and that, hence, the defendant is not liable. It is contended by counsel for plaintiff, in substance, that this case “is not one of landlord and tenant and notice,” but is such as should, under the facts, be decided upon a different theory, viz., that the members of the Wandrie Club, including plaintiff, had been invited, in consideration of the payment of an agreed sum, to come upon the premises for the purpose of holding a dancing party, at which liquid refreshments were to be sold to said members and guests. And counsel argue that said members, including plaintiff, had a right to assume that the premises were suitable and reasonably safe for that purpose; that the evidence discloses that the defendant did not use reasonable care to keep the premises in a reasonably safe condition, and that, therefore, the defendant is liable for the injury to plaintiff, lawfully upon the premises. In Pauckner v. Wakem, 231 Ill. 276, it was decided that the owner of premises, who expressly or impliedly invites another person to enter the premises for the transaction of business in which both are interested, to such person the duty to exercise reasonable care for his safety while on that portion of the premises required for the purpose of his visit, and that such duty extends to a servant of such person. (See also Franey v. Union Stock Yard & Transit Co., 235 Ill. 522; Hart v. Washington Park Club, 157 Ill. 9, 13; Purtell v. Philadelphia & R. Coal & Iron Co., 256 Ill. 110, 114.) In Stickel v. Riverview Park Co., 250 Ill. 452, 454, it was decided that in amusement places, where space is granted for conducting attractions for the amusement of the public and for which an admission fee is charged by the concessioner and divided with the owner, the owner assumes an obligation that the devices and attractions operated by the concessioners are reasonably safe for the purposes for which the public is invited to use them. (See also Babicz v. Riverview Park Co., 256 Ill. 24; Dietze v. Riverview Park Co., 181 Ill. App. 357.) In Turgeon v. Connecticut Co., 84 Conn. 538, it was decided that where a street railway company, owning and maintaining an amusement park for its patrons and the public in" order to hold and increase its traffic, invited people to come upon the premises for business or pleasure, it was bound to exercise reasonable care to have and keep the premises, and the structures and appliances thereon, reasonably safe for such visitors, and that it made.no difference, as to the company’s liability, whether an admission fee to the park was charged or not, or whether the structures and appliances were leased to others, who operated and controlled them subject to the company’s general supervision. In Camp v. Wood, 76 N. Y. 92, the defendant kept an inn upon the premises and in the third story of the inn was a hall, which he was accustomed to let for public purposes. On the evening when plaintiff was injured the defendant had let the hall for a dance, to which all persons who applied were admitted on payment of an entrance fee. The hall was reached by two flights of stairs, one directly above the other. The entrance from the street was by a door opening into the hallway opposite the foot of the lower flight of stairs. There was a door in the second story which occupied the same relative position to the upper stairs, and this door opened upon a piazza or wooden awning, six feet wide and twelve feet above the sidewalk. Plaintiff paid the entrance fee and was admitted to the dance. When he left to go home, after passing down the upper stairs, he went out of the door opening upon the piazza, supposing that it was the street door. The night was dark and the door was open. There was no railing or guard on the piazza and plaintiff walked oh of the piazza, fell to the street and was injured. The trial resulted in a verdict and judgment for plaintiff. In affirming the judgment, it was held that the defendant, by letting the hall for public purposes, held out to the public that the hall was safe, and he was bound to exercise care to provide safe arrangements for the entrance and departure of people, who came there upon his invitation, and that the question whether there was a breach of this duty was, upon the evidence, properly submitted to the jury. In Oxford v. Leathe, 165 Mass. 254, plaintiff was injured by the falling of an elevated platform on premises owned by the defendant. Some days before the accident the defendant had made a written agreement that he had “leased the Woburn Bink and seats now therein for four nights,” August 2nd to 5th inclusive, to one Gleason, all money in the box office to be under the defendant’s control until twenty dollars was paid each night. Gleason’s understood purpose was to give exhibitions of horse training. On the evening of August 9th, Gleason was holding over the foregoing terms by an oral understanding, and an entertainment was to take place, and plaintiff, with others, was standing on said platform in front of the entrance, waiting for the doors to open, when the platform fell. There was evidence that the support of the platform was defective. The jury returned a verdict for the plaintiff upon which judgment was entered. On appeal the judgment was affirmed, the court holding that if the jury found that the use actually made of the platform was something which the defendant was bound to have contemplated, he was liable for any neglect of proper precautions to make it safe, whether Gleason also was to blame or not, just as in the case of premises let with a nuisance upon them, and that the short and interrupted character of the occupation allowed to Gleason made it obvious that the safety of the building must be left mainly to the defendant. And under the decisions of our Supreme Court it is the law of this State that, while as a general rule the occupant and not the owner is responsible for injuries arising from a failure to keep the premises in a proper state of repair, still, where the premises are let with a nuisance upon them by means of which the injury complained of is received, in such case the owner is liable. (Tomle v. Hampton, 129 Ill. 379, 383; West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210, 218; Gridley v. City of Bloomington, 68 Ill. 47, 51.) Under the facts of the present case, as outlined in the foregoing statement, and under the law, we are of the opinion that, whether or not the relation of landlord and tenant existed between defendant and the Wandrie Club on the night of April 22, 1911, the case was properly submitted to the jury, and that the verdict and judgment are not contrary to the law or the evidence. , ' Counsel for defendant urge that the court erred in giving instruction No. 9, offered by plaintiff. While the language used in the first sentence of this instruction is not accurate, we do not think that, in view of all the other given instructions, the instruction was misleading to the jury, or that the giving of it constitutes such error as requires a reversal of the judgment. Nor do we think that the court erred in refusing to give certain instructions offered by the defendant, as argued by counsel. Finding no reversible error in the record, the judgment of the Circuit Court is affirmed. Affirmed.