307 Ill. 197 | Ill. | 1923
delivered the opinion of the court:
Appellee, by her next friend, brought an action in the superior court of Cook county against the appellant for personal injuries. The declaration charged that the defendant was possessed of, owning, managing, operating and conducting a certain store, retail establishment and building located in the city of Chicago, and therein, on the fourth floor of the building, a certain playroom or recreation room for children; that it built, maintained and conducted such playroom for the amusement, entertainment and enjoyment of its customers and the public; that the plaintiff, who was a minor six years of age, was in said playróom at the invitation of the defendant and was playing with and riding on a certain rocking-horse in the possession of and maintained by the defendant; that “the defendant negligently and carelessly, wrongfully caused, allowed and permitted said horse or toy to become defective, broken, worn, weak and unprotected and improperly constructed and maintained, and in particular with a loose, defective, broken, insecure and improperly fastened handle or hand-hold or screw thereon,” and that the plaintiff, while riding on said horse and holding onto said hand-hold, did, on account of the negligence of the defendant, while exercising due care on her own part, fall and was thrown off the rocking-horse to the floor, whereby she was injured. Appellant filed a plea of general issue, and on a trial the jury returned a verdict for plaintiff, assessing her damages at $1000. Upon a remittitur of $700 the defendant’s motion for a new trial was denied. On appeal being prayed to the Appellate Court the remittitur was set aside and judgment entered for $1000. The Appellate Court required a remittitur of $650, which was entered, and affirmed the judgment, and, evidently considering that a new or unsettled point of law was involved, granted a certificate of importance.
We find no new or novel question in the case. The assignments of error raise the simple questions whether the defendant owed a duty to the plaintiff, whether the doctrine of res ipsa loquitur applies, and the question of fact as to negligence.
Appellant contends.that it owed no duty to the appellee; that there was no invitation, either expressed or implied, shown in the record. We do not so view the record. The declaration charges and the evidence shows that the playroom was conducted in connection with the business of appellant for the use and benefit of the children of customers. This necessarily implies a general invitation to anyone in the store accompanied by children to make use of the playroom at all proper times. (Pauckner v. Wakem, 231 Ill. 276.) Plaintiff being there by implied invitation, it was the duty of the appellant to use reasonable care in providing a reasonably safe place for the plaintiff to play.
Appellant contends that the language of the declaration charging that the defendant caused and permitted the handhold to become loose and defective must be construed to mean that the defendant knowingly caused and permitted the dangerous condition, and that there being no evidence in the record of notice to the appellant of any defect, the allegation that the appellant permitted this condition to arise is not sustained by the proof. With this we do not agree. The description given by the mother of the plaintiff as to how the accident occurred showed that the hand-hold pulled out of the toy horse; that it was not securely fastened and became detached while the’ child was on the horse. These facts, taken with the duty on the part of the appellant to maintain a reasonably safe place for children to play, establish a prima facie case of negligence. No testimony was offered on behalf of the appellant on that question. The evidence shows that the appellant kept a servant in attendance in this room.
It was not error on the part of the Appellate Court to hold that the record sustained the- finding of the jury as to negligence. The declaration charged specific negligence in allowing the hand-hold on the toy horse to become loose and out of repair, and the evidence showed that the accident was caused by such condition of the hand-hold. The doctrine of res ipsa loquitur does not, as is supposed, apply to this case. It does not apply where there is evidence of specific negligence. That doctrine is, that while negligence is not, as a general rule, to be presumed, yet where the injury occurs as the proximate result of an act which under ordinary circumstances would not, if done with due care, have injured anyone, the case is taken out of the general rule and becomes one in which there is a presumption of negligence; also where the instrument effecting the injury is shown to be under the management of the one charged with negligence or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management of such instrument use proper care, such fact affords reasonable evidence, in the absence of explanation by the defendant, to raise the presumption that the accident arose from negligence on the part of the one having the management of such instrument. In this case, as we have seen, the record shows negligence in permitting the hand-hold to become loose on the toy in question. Moreover, the declaration charges such negligence.
Appellant also contends that the court erred in giving the second instruction offered by plaintiff. This instruction is as follows:
“The court instructs the jury that if you believe from the evidence that the plaintiff, Mary June O’Rourke, at the time of the accident in question, was a child of the age of five years, then she cannot because of her tender years, be guilty of or charged with carelessness with respect to the accident in this case, so as to relieve at all any want of due care on the part of the defendant, Marshall Field & Co., so that if the jury further believe from the evidence that the-accident causing the injury to plaintiff was due to want of due and ordinary care by the defendant Marshall Field & Co., then you should find a verdict for the plaintiff.”
The objection to this instruction is that there is no limitation in time, character or place as to the want of due and ordinary care on the part of defendant, but that the instruction is to find for the plaintiff without regard to when or where the lack of care occurred. Counsel cites in support of this contention Herring v. Chicago and Alton Railroad Co. 299 Ill. 214. In that case the instruction held bad told the jury that if they believed from a preponderance of the evidence that the plaintiff was injured while in the exercise of due care and caution for his own safety at and prior to the time of the accident, through negligence of the defendant, the jury should find the defendant guilty. The objectionable feature of that instruction was not that it did not limit the time of the occurrence of negligence, but that it did not limit the negligence to that charged in the declaration but authorized recovery for negligence generally. The same distinction is to be drawn between the case at bar and the case of Gibbons v. Hoefeld, 299 Ill. 455, also cited by appellant. We are of the opinion that the instruction is not open to the objection urged. Whether or not it is open to other objections is not here decided. The jury were told that if they believed from the evidence that the accident which caused the injury to the plaintiff was due to want of due and ordinary care on the part of the defendant they should find their verdict for the plaintiff. It is not necessary that negligence such as is charged here should have been operative for any particular length of time or at any particular time. The declaration charges, in effect, that it was the present proximate cause of the injury to plaintiff.
The record contains no reversible error, and the judgment will be affirmed.
Judgment affirmed.
