Appeal from the Circuit Court of Lake county; the Hon. BERNARD
M. DECKER, Judge, presiding. Affirmed.
MR. JUSTICE EOVALDI DELIVERED THE OPINION OF THE COURT.
Plaintiff seeks to recover damages for personal injuries sustained when the ground under the rear wheel of one of the defendant's trucks, equipped with a concrete mixer, which had been parked near an excavation where a house was to be erected, for the purpose of pouring ready-mixed concrete into the foundation forms, onto which the plaintiff had proceeded, gave way, or the truck slid, causing the rear of said truck and mixer to be precipitated into the excavation and against the plaintiff, causing the injuries complained of.
Plaintiff, 17 years old at the time, was employed by his father who was engaged as a subcontractor in the construction of the basement and foundation in forms erected in the excavation, dug by others. The day in question was rainy and misty, and as defendant's concrete-mixer truck arrived at the scene, plaintiff's employer, the elder Markus, furthest from the place where plaintiff was working, pointed to the place where concrete was needed. Defendant's driver testified that the mixer always turns when it has wet cement in it and that there were 4 1/2 yards of concrete in the truck. Plaintiff testified that the tumbler of the truck was moving before he got between the truck and the foundation, and the mixer had attained the top speed for a mixer to go after the truck stopped, and as the tumbler went fast, the truck started vibrating and going back and forth. In backing his truck to within two or three feet of the excavation, defendant's driver testified he was on ground firm but wet and inclining towards the excavation. It does not appear that he blocked the wheels in any manner.
The case was tried before a jury. Motions for directed verdict at the close of plaintiff's case and at the close of all the evidence were denied. The jury returned a verdict finding the defendant guilty and assessing the plaintiff's damages in the sum of $12,500. Judgment was entered on the verdict. Thereafter, defendant entered its motion for judgment notwithstanding the verdict and its alternative motion for a new trial. On the hearing, these motions were overruled and denied. From this judgment defendant appeals.
In the amended complaint, consisting of two counts, plaintiff charged in Count I that the defendant knew, or in the exercise of reasonable care should have known, that there was an open trough between the concrete forms and the land or ground upon which it was operating its truck or concrete mixer, and that the ground was unsupported other than by natural formation; that plaintiff was employed by Henry J. Markus as a laborer to do certain work upon the concrete to be poured into the said forms, and charged that the defendant, by its agents and servants, "negligently and carelessly drove, moved, operated or managed said truck or concrete mixer, causing it to topple over or fall into the opening or excavation adjacent to the aforesaid concrete forms," as a result of which plaintiff was struck and crushed with great force and violence, and sustained severe and permanent injuries.
Count II adopts the allegations of Count I and charges that the defendant was guilty of one or more of the following acts:
"a. Negligently and carelessly drove, moved, operated or managed said truck or concrete mixer too close to the edge of the land or ground.
"b. Negligently and carelessly drove, moved, operated, managed or stopped said truck upon an incline.
"c. Negligently and carelessly operated, managed or stopped said truck upon a slippery incline.
"d. Negligently and carelessly managed, operated or stopped said truck on a slippery incline, too close to the edge of the aforesaid excavation while the vehicle was vibrating and in an unsafe position.
"e. Otherwise carelessly and negligently operated and stopped said truck."
Damages were claimed in the sum of $20,000.
Defendant filed its answer denying the age of plaintiff to be 17 and alleging that he was of the age of 18 years; denied that he was in the exercise of ordinary care and caution for his own safety, as required of a minor of his age, denied any knowledge of the land or ground being unsupported other than by natural formation, denied each and every charge of negligence laid against it in the amended complaint, and denied that plaintiff sustained injuries or damages as claimed.
Defendant's theory of the case is that it was not guilty of any negligence which was the proximate cause of the plaintiff's alleged injuries; that plaintiff failed to prove the exercise of ordinary care on his own part prior to and at the time of the occurrence complained of; and that if negligence there was, which was the proximate cause of the plaintiff's alleged injury, ...