Hart v. Sullivan ( 1944 )

Mr. Presiding Justice Niemeyer

delivered the opinion of the court.

Plaintiff, administratrix of the estate of her deceased husband, appeals from a judgment entered upon a verdict directed for the defendant at the close of plaintiff’s evidence in an action for the wrongful death of the deceased.

Joseph Donati, a tenant, lived with his family on the third floor of defendant’s building; the second floor was occupied as living quarters by another tenant; the first floor was used commercially; access to Donati’s flat was through a door at the street level into a small hall, then to the west, up a flight of stairs consisting of 12 or more steps to the first landing, then to the right or north up 4 or 5 steps to the entrance to the quarters on the second floor, then to the east up a stairway to the third floor; across the first landing to the west was a door opening on a stairway running downward' to the west, into the basement; the only light in the hall, along the stairs or upon the landing, was a small electric light at the entrance to the second flat which was controlled from the inside of that flat. One evening, around 10 o’clock, plaintiff and deceased while walking in the vicinity of the building were accosted by Guido Paoletti, whom they had known for a number of years; he asked for the address of Donati; being unable to tell exactly where Donati lived, the deceased and plaintiff took Paoletti to the building; they entered the unlighted hallway from the street and, lighting a match, found Donati’s name on the mail box; Paoletti lighted another match and deceased started up the stairs, followed by Paoletti and plaintiff; the match was extinguished before deceased reached the first landing; it was pitch dark — so dark you couldn’t see; they continued up the stairs in the darkness, hugging the bannister on the right; on reaching the landing deceased stepped across, pushed open the door to the west and fell down the stairway leading to the basement, receiving injuries from which he died about 10 days later.

The only negligence charged against the defendant is his failure to keep and maintain the passageway, halls, stairways, steps, landings, etc., safely and properly lighted, and in permitting and allowing them to be and remain dark and insufficiently lighted. In directing the verdict for the defendant the court placed his ruling upon two grounds: “First, that it believes the deceased was a mere licensee at the time of the accident and, second, that even if he, were not and were an invitee, he was guilty of contributory negligence amounting to practically gross negligence.”

Plaintiff contends that the determination of these questions was for the jury, and acquiesces in defendant’s position that if the deceased was a mere licensee and was not an invitee on defendant’s premises the only duty owed to plaintiff was not to injure deceased wilfully or wantonly. There is no charge of wilfulness or wantonness against defendant. In Milauskis v. Terminal Ry. Ass’n of St. Louis, 286 Ill. 547, 555, the court said: “If a person is upon the premises of the owner by an invitation, expressed or implied, and not by mere permission, then such owner owes Mm a duty to exercise ordinary care to keep the premises in a reasonably safe condition. (Purtell v. Philadelphia Coal Co., 256 Ill. 110.) 'To come under an implied invitation as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged or which he permits to be carried on there. There must be at least some mutuality of interest in the subject to which the visitor’s business relates, although the particular thing which is the object of the visit may not be for the benefit of the occupant.’ ”

The duty which a landlord owes to a business invitee extends also to those who have lawful occasion to visit the tenant for social purposes. 32 Am. Jur., Landlord and Tenant, § 691, page 568; Reardon v. Shimelman, 102 Conn. 383, 386; Gallagher v. Murphy, 221 Mass. 363; Coupe v. Platt, 172 Mass. 458. The burden of proving that deceased was upon the premises as an invitee rested upon plaintiff. In passing upon the right of the trial court to direct a verdict at the close of plaintiff’s case this court cannot weigh the testimony but must consider plaintiff’s evidence in its aspect most favorable to her. Plumb v. Getz, 366 Ill. 273. The only purpose of plaintiff and deceased: in entering defendant’s premises was to show or take Paoletti to Donati’s living quarters. The record is absolutely silent as to the purpose of Paoletti in seeking to visit Donati. Donati and Paoletti were waiters. So were deceased and plaintiff. Beyond the several statements of Donati that at the time of the accident as well as at the time of the trial he knew Paoletti by the name of Gruido but did not know his last name, there is nothing in the record to indicate the relationship between Donati and Paoletti. Beyond acquaintance for a number of years, there is nothing to show the relationship between Donati and plaintiff and the deceased. That Donati did not expect anyone to call upon him that evening is evidenced by the fact that he had retired for the night when the accident occurred. Paoletti and Donati were called as witnesses by the plaintiff. Neither of them was asked any question tending to throw any light upon the nature of Paoletti’s proposed visit to Donati. There were no facts before the court from which any inference could be drawn as to the nature of this visit. As already stated, the burden of proving plaintiff to be an invitee rather than a licensee rested upon plaintiff, and in the absence of any evidence tending to prove that point the court properly directed a verdict. •

It is not shown by the evidence that plaintiff or deceased had. ever been upon defendant’s premises before. Without familiarity with the premises and without any urgent necessity to do so, deceased persisted in ascending the steps, crossing the first landing and advancing through the door to the west in utter darkness. Such conduct has been held to be contributory negligence as a matter of law. Bentley & Gerwig v. Loverock, 102 Ill. App. 166, 171; Sauter v. Hinde, 183 Ill. App. 413; Swanson v. Peter Schoenhofen Brewing Co., 215 Ill. App. 185; Wesbrock v. Colby, Inc., 315 Ill. App. 494; Brugher v. Buchtenkirch, 167 N. Y. 153.

The judgment is affirmed.

Affirmed.