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Barango v. Hedstrom Coal Co.

NOVEMBER 27, 1956.

JOHN BARANGO, APPELLEE AND SEPARATE APPELLANT,

v.

E.L. HEDSTROM COAL CO., AN ILLINOIS CORPORATION, SEPARATE APPELLEE, ELIZABETH L. FITCH, ADMINISTRATOR OF THE DECEASED, D/B/A V.A. FITCH MOTOR SERVICE, APPELLANT.



Appeal from the Superior Court of Cook county; the Hon. DANIEL A. COVELLI, Judge, presiding. Affirmed in part; reversed in part and cause remanded with directions.

JUDGE MCCORMICK DELIVERED THE OPINION OF THE COURT.

This action was brought by the plaintiff, John Barango, to recover damages for injuries sustained by him allegedly resulting from the joint and several negligence of E.L. Hedstrom Coal Co. (hereafter referred to as "Hedstrom") and Elizabeth L. Fitch, administrator of the estate of Vernon A. Fitch, deceased, d/b/a V.A. Fitch Motor Service (hereafter referred to as "Fitch"). The case was tried before a jury, a verdict was returned in favor of the plaintiff for $75,000 against both defendants, and judgment was entered upon the verdict. The trial court sustained the motion of defendant Hedstrom for judgment notwithstanding the verdict, and entered judgment accordingly in favor of that defendant. At the same time the court denied both Hedstrom's and Fitch's motions for a new trial. From the judgment entered for the plaintiff against the defendant Fitch for $75,000, the latter takes this appeal. A separate appeal was also taken by the plaintiff from the order of the court sustaining defendant Hedstrom's motion for judgment notwithstanding the verdict and from the judgment in favor of Hedstrom entered by the trial court.

The case grew out of an accident occurring on November 30, 1949. The plaintiff Barango, a self-employed cab driver, stopped his cab on the north side of Lawrence Avenue, in Chicago, facing west, just ahead of the cab of one Seiff. He went back to Seiff's cab to talk to him, and while he was standing at the left door of Seiff's cab (the door towards the street), he was struck by a coal conveyor apparatus belonging to Hedstrom, which had broken away from a six-wheel coal dump truck going west on Lawrence Avenue to which it had been attached. The truck was owned by Fitch and at the time was being driven by an employee of Fitch who had been in her service for about three weeks and who had previously worked for Hedstrom as a driver. With the driver in the truck was a coal hiker employed by Hedstrom.

Hedstrom in 1949 owned its own trucks but occasionally when extra trucks were needed hired them from Fitch. The practice was that Fitch's drivers would report in the morning to pick up a truck. Fitch usually the night before notified the driver as to what truck he was to take, where he was going, and whether he would be hauling coal, dirt, crushed stone, or something else. When the driver went to Hedstrom's he would get a slip from someone there, which would designate how much coal was to be delivered, the address of the customer, and whether the coal was to be carried by conveyor or otherwise. The driver would not know any of these facts until he arrived at Hedstrom's. The driver of the truck involved had driven coal trucks for two or three years and was familiar with the way hitches connecting a conveyor to the truck would operate. He had been sent to Hedstrom's on prior occasions but had not previous to the day in question hauled a conveyor with a Fitch truck, although he had with other trucks he had driven.

The driver on the morning in question, under Fitch's instructions, took a Fitch truck to Hedstrom's. The driver did not know that a conveyor was to be used that day until after he had arrived at Hedstrom's. The conveyor apparatus is a device about 10 feet long, about five feet high, weighing about 500 to 600 pounds. It is narrower than the conventional coal truck. It is mounted on two wheels and when disconnected the front rests upon the ground. The conveyor, used for unloading coal, consists of a trough, open at one end and with a closed small hopper at the other. During the unloading of the coal from the wagon, the coal falls into the hopper and is carried through the trough upon an endless rotating belt with slots, and the coal is thus conveyed to the basement or wherever it is desired to be placed. Above the wheels and standing high above the trough of the conveyor is a gasoline motor designed to operate the conveyor when unloading coal. There is a tongue on the front of the conveyor stabilized by two springs, one vertical and one horizontal, and at the tip of the tongue is a hole adapted for attachment to a hook, which is part of the hitching apparatus located at the rear of the truck, in the center. In attaching the conveyor to the truck the hole in the end of the tongue of the conveyor is inserted into the lower hook of the hitch. The top hook of the hitch is then pulled down and the hitch is closed. Above the top hook of the hitch there is a lever, or "dog," which, after the hitch is closed, is pushed down in order to lock it. Attached to the sides of the front of the conveyor are safety chains which, when the conveyor is properly connected to a truck, are firmly attached to the truck by means of hooks placed on each side of the truck for that purpose, and trucks designed to haul conveyors are so equipped. All the trucks that were heretofore so used by the driver of the instant truck had had such hooks. The Fitch truck used on the day in question had no such hooks, but did have a chain, known as a "wheelbarrow chain," across the entire back of the truck. This chain would be used to hold a wheelbarrow if a wheelbarrow was to be taken along for the purpose of unloading the coal. The conveyor in question was not easily attached to the truck, inasmuch as the driver had to force down the lock, or dog, on the truck hitch by hitting it. The customary and usual way to close the hitch is simply to pull it into position. The lock on the instant truck had never come open before, but the driver had complained to the manager at Fitch's concerning the hitch on the truck.

At the time the driver connected the truck to the conveyor, one "Red," the yard superintendent employed by Hedstrom and in immediate charge of the yard, was present. He gave the driver instructions to the effect that the coal was to be unloaded by a conveyor, and he told the driver how to fasten this particular conveyor to the truck. The safety chains were not attached to the truck but were wrapped around the tongue of the conveyor.

The defendant Hedstrom, in support of its position that the trial court ruled properly in entering judgment in its favor notwithstanding the verdict, urges that there was no evidence of independent negligence on its part. The plaintiff in his amended statement of claim alleges that the acts of negligence of Fitch and Hedstrom relied on were joint and several, and the case was tried on that theory.

[1-6] In the instant case we have a unique situation. Ordinarily, if a person engaged the owner of a truck to do hauling for him, the owner alone would be responsible for the safe condition of the truck and no liability could attach to the person hiring the truck for any defects which might have caused injury to a third person. Here, however, before the truck went on the errand for which it was engaged, an additional step was taken which involved the joint action of both defendants. Hedstrom had the right to determine the method of delivery of the coal, and if the delivery was to be by means of a conveyor, Hedstrom furnished the conveyor which had to be attached to the truck and taken to the place of delivery. Fitch knew or should have known these facts. The Fitch truck was equipped with a hitch to which a conveyor could be attached. Fitch either knew or should have known of the necessity of safety chains. The truck which was sent to Hedstrom was not adapted for the attachment of such chains. There is no evidence in the record to indicate in what manner, if at all, safety chains could be properly and safely attached to a truck lacking such hooks. Irrespective of any statutory requirement, a truck operator engaged in towing another vehicle is performing an act of potential danger to other operators and pedestrians, and persons using a dangerous instrumentality are required to exercise care commensurate with the danger to be apprehended, in order to prevent injury to others. Staples v. Spelman, 165 A. 783 (Conn.). In the instant case equipment was provided on the conveyor designed for securely attaching it to the truck, and those means should have been employed. Failure to use the means was a deviation from the proper standard of safety. Fitch furnished a truck without hooks suitable for the attachment of safety chains. The truck also had an imperfect coupler, of which Fitch's yard manager had been informed. Hedstrom furnished Fitch with a conveyor which had chains properly attached to it. At the time of the attachment of the conveyor to the truck a duty devolved on both Fitch and Hedstrom to see that the united truck and conveyor going upon the streets conformed to a reasonable standard of safety. There seems to be no dispute that if the chains had been properly attached to the truck there would have been no accident. Fitch was aware of the fact that different methods of delivering coal could be demanded of the driver of the truck furnished by her, and that one of the methods of delivery required the conveyance through the streets of a conveyor attached to the truck. One Riley, a witness for Hedstrom and who at the time of the occurrence was manager of the Hedstrom coal yards but was not present at the time of the attachment of the conveyor to the truck, testified that Hedstrom would look at trucks sent it from Fitch to see whether a conveyor could be coupled on to it, and would want to know whether the trucks were the type which could be coupled on to Hedstrom's type of conveyor. He also stated that if Fitch had sent Hedstrom a driver who was unsatisfactory Hedstrom would report to Fitch telling her that it wanted someone else and would send him back. Fitch on the day in question sent Hedstrom a truck which was not suitable to safely use with the conveyor. The duty rested on Fitch through her servant, the driver, to refuse to use that truck to tow a conveyor, particularly since he knew and had complained about the unsatisfactory hitch on the truck. A duty rested upon Hedstrom through its servants to reject a truck which was not suitable for the proper attachment of a conveyor conforming to reasonable standards of safety. Instead, the agent of Hedstrom instructed Fitch's driver to wrap the chains around the tongue of the conveyor without attaching them in any way to the truck. Hedstrom, of course, could have provided for some other method of unloading the coal which would not have involved the use of a conveyor. Both defendants violated the duty which the law imposed on them. As we have said, the plaintiff's theory during the trial of the case was that both defendants were guilty of negligence and were jointly and severally liable. The instructions given by him and his argument to the jury so indicate, and from the evidence the jury could have properly so found.

A considerable portion of the briefs before us is devoted to a discussion of whether the driver of the Fitch truck at the time in question was a loaned servant of Hedstrom or a joint servant. In the view we take of the case such discussion is not pertinent, nor is the contention of Hedstrom that the fact the accident took place after the unloading of the coal would relieve it from liability. There was sufficient evidence in the record of Hedstrom's negligence to take the case to the jury, and consequently the judgment in its favor notwithstanding the verdict was erroneous.

In its motion for new trial, which was denied by the trial court, Hedstrom in addition to its contention that it was not guilty of negligence urges that the court erred in giving certain instructions, that the plaintiff was guilty of contributory negligence, and that the verdict is excessive.

Among the instructions objected to was one given by the plaintiff, which told the jury that there was in section 130 of the Uniform Traffic Act (par. 227, chap. 95 1/2, Ill. Rev. Stat. 1949) a provision forbidding the operation of a trailer on the highways unless it shall have adequate safety chains. The objection urged is that the conveyor was not a trailer within the statutory definition. The definition of "trailer" as used in the statute, section 4 (a) of the Uniform Traffic Act (par. 101, chap. 95 1/2), is a vehicle "without motive power designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle." This definition was not incorporated in the instruction. The instruction of the plaintiff merely quoted section 130 of the Act with reference to the requirement of safety chains on a trailer. It is urged by Hedstrom that the conveyor in question did not conform to the statutory definition and submission of the issue to the jury was error.

[7-9] The plaintiff in his amended statement of claim, which was filed after all the evidence had been heard, included the alleged statutory violation as one of his grounds for recovery. The defendant Hedstrom filed an answer meeting it as an issue of fact, and it was so argued to the jury. Section 130 of the statute was remedial and should be liberally construed. It was a safety measure passed for the benefit and protection of all users of public highways. It was designed to afford an additional protection so that if the primary connection between the vehicles separated they would still be firmly connected to each other by means of the safety chains. In construing a statute the court must ascertain and give effect to the intention of the legislature. In Petterson v. City of Naperville, 9 Ill.2d 233, the court states that the primary object of statutory construction is to ascertain and give effect to legislative intent, and reiterates the rule laid down in People ex rel. Holvey v. Kapp, 355 Ill. 596, where the court said:

"This intent, as we held in Bowman v. Industrial Com., 289 Ill. 126, `is to be gathered from the necessity or reason for the enactment and the meaning of the words, enlarged or restricted according to their real intent. In seeking this intention the court will always have regard to existing circumstances, contemporaneous conditions, the object sought to be attained by the statute and the necessity or want of necessity for its adoption. It must also have in mind the language used by the legislature, the evil to be remedied and the object sought to be attained. In construing a statute the court will not be confined to its literal meaning. A thing within the intention is regarded within the statute although not within the letter. A thing within the letter is not within the statute if it is not within the intention. When the intention has thus been ascertained from the reading of the statute, words may be modified or altered so as to obviate all inconsistencies with such intention.'"

It could be argued that under the definition it would be a mixed question of law and fact as to whether or not the conveyor fell under the statutory definition of trailer. Section 4 (a) of the Act, defining "trailer," merely provides that the vehicle, in order to be denominated a trailer, must have been "designed" for carrying persons or property, but there is no requirement that in order to so qualify, persons or property must be in the trailer while it is being operated. Attached to the conveyor at the time when it was being towed was a gasoline motor which was carried by the conveyor through the streets and was intended to be used to motivate the conveyor during the subsequent unloading operation. Section 4 (a) also provides as a part of the definition of a trailer that "no part of its weight rests upon the towing vehicle." As we have said, the purpose of section 130 was a safety measure. A vehicle, the weight of which rested upon the towing vehicle, would by that very fact be so firmly attached that it would not be as likely to break loose and cause damage as one whose weight did not so rest; hence in order to insure safety to the users of the public highway safety chains were required in the latter case. There is very little evidence in the record as to whether or not any of the weight of the conveyor rested upon the truck after it was connected and was being towed through the streets. The record shows that the shaft which attached the conveyor to the truck is flexible, and that when it is attached to the truck the only thing that prevents the conveyor from going up to its maximum range is the fact that it is connected to the truck by the shaft, which would indicate that if any weight rested on the truck it was very little. The legislative intent was to provide an ...


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