Appeal from the Circuit Court of Coles County; the Hon. HARRY
I. HANNAH, Judge, presiding. Affirmed.
Plaintiff filed his suit charging the defendant with common law negligence in the maintenance of its trucks which resulted in a back injury to the plaintiff. At the close of all the evidence, the Court directed a verdict in favor of the defendant, entered an appropriate judgment, and plaintiff appeals.
Huckaba Construction Company was a general contractor engaged in road building. Three of the trucks used in the enterprise, together with their drivers, were leased from the defendant, Walker Construction Company, for $10 per hour. Walker hired, paid and discharged the drivers, repaired and greased the trucks, provided the fuel, paid the taxes on them and stored them at night. Huckaba directed the movements of the trucks and drivers after they reached the job site. Plaintiff was an employee of Huckaba engaged in dumping the trucks. Both Huckaba and Walker operated under the Illinois Workmen's Compensation Act.
These trucks were metal dump bed, tandem axle truck with a hydraulic hoist. Their cargo was sand, gravel, and concrete. The bed was separated into compartments by batch or divider boards which kept the various materials segregated. The truck would back up to the mixer and the driver then elevated the bed so the material was discharged by gravity. At the back of the truck was the plaintiff the dump man. Each batch or divider board had an individual lever, pulley and rope. By pulling the rope or pushing the lever, the batch board would trip and release the material. Plaintiff had had previous experience as a dump man. As abstracted, the plaintiff described the occurrence events as follows:
". . . These batch trucks were loaded with sand, gravel and cement. As I would dump the truck I would stand by the side of the truck. I would be standing on the ground. The batch truck is just like a dump truck, only it has boards in it, batch boards, and some of the trucks have three batches in them and some have four batches in them. These batches are kept separated and apart by batch boards, and there is a lever. When you get ready to dump one of those batches I pushed on the lever to release it. The lever was hanging down at the side of the truck. The bottom of the lever would strike me at about the waist. When I would lift the lever, and had to go up with it. Before I started the lever, I would be in a standing position. The lever would be moved toward the back of the truck. During these six days I had had occasion to dump other loads. The truck being used belong to Walker, Huckaba and Jordan. I don't know which truck it was. When this lever stuck it was about as high as my head, and my arms were up over my head. I had moved the lever prior to the time when it stuck. The bed was down before I backed him in, and I always break the boards loose before he raises the bed, but that time it didn't come loose, and the bed was already up, and I reached up and shoved on it, pushed up on it. It didn't move. At that time I had a sharp pain in my back. After just about a minute it felt like a bunch of needles was jabbing me in the back. It felt like an electric shock went through me when I felt that pain in by back. I still have the pain. . . ."
Four witnesses for the defendant testified that the trucks had ropes and pulleys. Plaintiff, in rebuttal, testified as follows:
". . . On the particular truck at the time of my accident there were ropes attached to some of the levers of that truck. There was no rope attached to the lever that I got hurt on. I do not recall that there was any pulley on that particular lever that would be connected with the lever in any way."
Question: Mr. Chambliss, did you talk to your counsel about a rope before you got on the witness stand just now?
Question: About a rope on the trucks?
Question: Up to this time you have never made any mention on direct examination or ...