Madigan v. Flaherty , 50 Ill. App. 393 ( 1893 )

Opinion of the Court,

Waterman, J.

This was an action brought by the plaintiff, a woman of mature years, to recover damages from a merchant, occasioned by her failure to see that in a row of stools placed in front of a counter for the convenience of customers, there was a post from which the top, which had formerly made it a stool, was absent. The absence of this top, and that it was no longer a place for sitting, ivas open to view, obvious to any one who looked, yet appellee, without looking, attempted to sit thereon, and in so doing fell to the floor.

Her failure to see what was patent, unconcealed, and without looking attempting to sit down where there was no seat, was such negligence as precludes her from a recovery for injuries thus occasioned.

The use of ordinary care is, in such a case as this, indispensable to ‘the maintenance of the action. C., B. & Q. R. R. Co. v. Johnson, Admr., 103 Ill. 512-521.

There was not, as is alleged in the declaration, resting upon the defendant a duty to provide stools for the use of customers.

The demurrer of the defendant to the evidence should have been sustained.

The judgment of the Superior Court is reversed and the cause remanded.