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Mokrzycki v. Olson Rug Co.

NOVEMBER 21, 1960.

STEVE MOKRZYCKI, PLAINTIFF-APPELLANT,

v.

OLSON RUG COMPANY, ETC., ET AL., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook county; the Hon. JOHN E. PAVLIK, Judge, presiding. Affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

This is a personal injury action by Steve Mokrzycki against Olson Rug Company for severe, permanent injuries sustained on August 27, 1953, while he was unloading a carload of bales of "carpet rags" from a box car at the plant of Globe Roofing Products Company which had been loaded by "Olson" at its plant in Chicago. The jury found the defendant not guilty. Plaintiff's post trial motion for new trial was denied and he appeals from the judgment entered on the verdict.

Olson manufactures carpets and rugs. One of its byproducts is "carpet rags" which it bales and sells. Globe uses carpet rags in making its roofing products. Olson loaded a box car with 51 bales of these rags and the car was delivered by the Chicago, Milwaukee, St. Paul and Pacific Railroad to the Globe plant on August 26, 1953. Other carloads had been shipped to Globe by Olson earlier in the year.

Plaintiff was helping another Globe employee named Kasznia unload the box car when injured. Kasznia operated a lift truck in the unloading process. The box car in question was immobilized for unloading at the Globe plant by blocking its wheels. The car had an inside length of 40' 6", was 9' 6" wide and 10' 9" high. The bales averaged in dimensions 30" 48" x 72" and each weighed from 1,000 to 1,200 pounds. The small ends of the bales on which they rest when upright are flat and measure 32" x 48", while the narrow sides of the bales measure 32" x 72". The bales were held together by wires which caused their narrow sides to be somewhat rounded.

The north and south ends of the box car each contained 22 bales, arranged identically. Four bales were placed on end along the west side of each end of the car, with their wide side against the side of the car. Two bales lay on their narrow sides across the top of these four bales. The remaining sixteen bales were stacked on their wide sides in four stacks of four bales each, with the stacks placed parallel to the end of the car. Seven bales were in the center of the car.

After the car was blocked and the door opened, Kasznia, using the lift truck, removed the seven bales from the center of the car. Plaintiff then helped Kasznia unload the four stacks in the south end of the car. He used a metal hook to pull the top bales off the stacks so that Kasznia could lift them with his truck and back out of the car with them. The others in the south end were unloaded without plaintiff's help.

Once the south end was unloaded, plaintiff helped Kasznia unload the four stacks in the north end of the car. After the first three stacks and the top bale of the fourth stack had been removed, Kasznia's truck took the second bale from the top of the last stack of four at the end of the car, and as he backed the truck toward the door of the car, plaintiff was holding the bale "steady." This placed him about two feet away from the upright bales on the west side of the car. When Kasznia returned to the car for the next bale, he found plaintiff lying injured on the floor. A bale on top of the vertical bales had fallen on his back.

The issues made by the pleadings were whether Olson was guilty of negligently loading the box car so as to proximately cause plaintiff's injuries, whether plaintiff was guilty of contributory negligence proximately causing his injuries, and whether the negligence of Globe was the sole proximate cause.

All the witnesses testifying on the method of loading and unloading agree that there is a certain amount of rocking of the box car when a lift truck of the weight used in the instant case is driven in and out of the box car. This rocking and swaying of the box car increases as the bales are unloaded.

The plaintiff, Kasznia, and Pearl, Globe's plant superintendent, testified in support of the charge of negligent loading, saying they had never seen a car loaded the way the instant car was loaded, with bales placed on their narrow rounded sides on top of vertical bales. This testimony was that normally the bales are loaded in a vertical position, and if it is necessary to place bales on top of the vertical bales, they are laid flat. The plant superintendent testified that the bales on top of the vertical bales should have been fastened to the car wall so as to avoid being dislodged by the swaying of the car when being unloaded by the truck. An expert witness testified that the bale which injured plaintiff would not have fallen "if ordinary wooden wedges" had been used to secure it, and that the Olson loading was improper.

Plaintiff contends that the verdict was contrary to the manifest weight of the evidence; that the court erred in allowing defendant to show that plaintiff was receiving compensation under the Workmen's Compensation Act; that the court erred in permitting an exhibit consisting of a plastic box containing wood blocks purporting to represent the box car and the bales of "carpet rags" to be taken to the jury room by the jurors during their deliberations; that the court erred in giving certain instructions; and that remarks of defendant's counsel in his closing argument were prejudicial and resulted in plaintiff being denied a fair and impartial trial.

Amadeo, Olson's dock foreman, testified that he loaded the car and, as he stacked the bales four high on their flat sides, he put vertical bales alongside with two bales on top of them so that they were supported and would not topple over. He said the rule followed in unloading was to try to unload a car in the pattern it was loaded. This would have resulted in unloading the bales on top of the vertical bales before they unloaded the last stacks of bales that were supporting them.

Experts for defendant testified that the load in a box car should be properly distributed so that it will not shift and cause a "derailment" damaging the goods; that unless there is an eighteen inch space between units, no bracing is needed; and that the car was improperly unloaded by first taking out the stacks which were supporting the bales on ...


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