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Dammann v. Turner Cartage & Storage Co.

APRIL 29, 1964.

FRANCIS E. DAMMANN, PLAINTIFF-APPELLEE,

v.

TURNER CARTAGE AND STORAGE COMPANY, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Winnebago County; the Hon ARTHUR V. ESSINGTON, Judge, presiding. Affirmed.

MORAN, J.

This is a personal injury case in which the plaintiff was awarded damages of $14,500. The defendant appeals, claiming that the trial court erred in refusing to strike a portion of the complaint, that erroneous jury instructions were given and that the verdict is against the manifest weight of the evidence.

In June, 1961, the Rockford Clutch Company was in the process of moving its plant and equipment from Rockford to Loves Park, Illinois. The Appellant in this case, Turner Cartage and Storage Company, had a contract with the Rockford Clutch Company to move the equipment. Appellant, in turn, hired trucks and drivers from the Blue Line Transfer Company of Rockford. Appellee, the plaintiff below, was one of the drivers furnished by Blue Line.

Part of the equipment to be moved consisted of a large number of steel storage cabinets or bins used for the storage of parts, tools and the like. These bins had adjustable shelves which were inserted by means of clips which fitted into slots. The shelves could be removed by exerting upward pressure, thereby disengaging the clips from the slots. The usual manner of exerting such pressure was to strike the shelf an upward blow with a hammer. Appellant's employees handled the transportation of these bins from inside the plant to the loading area and onto the flat bed trucks furnished by Blue Line. The Blue Line drivers then transported the bins to the new plant at Loves Park.

The job of carrying the bins from inside the plant to the waiting trucks was handled by means of a fork lift truck. This is a four wheel vehicle with two steel prongs extending from the front end. The prongs are hydraulically adjustable, both horizontally and vertically. The practice of Appellant's employees was to insert the prongs under the bottom shelf of the bin, raise the prongs so that the bin was off the floor, and thus carry the bin on the lift truck to the loading area, where it would be lifted hydraulically onto one of the Blue Line flat bed trucks.

Because the shelves in these bins were designed to come apart when upward pressure was applied, a number of the bottom shelves did come loose in response to the upward pressure from the forks. This, of course, would cause the whole cabinet to fall at least as far as the next shelf up. To meet this problem, Appellant's employees devised three safety measures. First, they would examine the bin before lifting it to determine whether it was tightly put together. Secondly, in the event the bin appeared "flimsy," they would place a skid, consisting of 2 x 4's or 2 x 6's, under the bin, and then lift the skid, thereby avoiding contact with the bottom shelf. (The bottom shelves fitted into slots which were several inches above the lower ends of the vertical portions of the cabinets.) The Turner Company crew had moved hundreds of the bins at the Rockford Clutch plant prior to the accident in question, and skids were used for about one third of them. Finally, Appellant's employees adopted a practice of having a man hold each end of the bin as it was being transported, so as to balance it and prevent it from tipping forward or falling. This procedure proved its worth on several occasions when these "safety men" managed to hold a bin which had started to collapse.

On the occasion in question Appellee drove his Blue Line truck to the loading area to pick up some of the storage bins. He had nothing to do with bringing the bins to his truck, or loading them onto the truck. His only function was to transport them once they were on his truck. The Turner Company employees selected a bin — one of the larger ones, about seven feet high, eight feet long, eighteen inches deep, and weighing between 600 and 800 pounds — and decided that it looked sturdy enough so that no skid was required. The fork was inserted under the bottom shelf and the cabinet transported by lift truck some 200 feet to Appellee's truck. When the lift truck arrived, Appellee was on the bed of his truck moving some lumber and chains out of the way to make room for the bin. As Appellee was bent over picking up these items, the bin was poised on the forks over the bed of his truck, ready to be lowered. The two "safety men" who had accompanied the bin as far as Appellee's truck now busied themselves with other tasks. One of them may have had a hand on one end of the bin as it loomed over Appellee's truck, but he was primarily engaged in giving signals to the lift truck operator. The other safety man stepped away from the bin altogether. What happened next is perhaps best described by Dominic Casarotto, the driver of Appellant's fork lift truck:

"After we got the cabinet about six or eight inches above the bed of the truck, with the fork lift in the center of the cabinet, and had raised it above the bed of the truck, I was setting there with the cabinet in the air, the truck driver was clearing 4 x 4's and so on off the truck, so that I could set it there, and as I was setting there the thing just collapsed on the opposite side. The shelves just gave way and I hollered, `Look out. Get out of the way. It is coming apart.' And that is what happened. It was about a tenth of a second from the time it began to collapse until the time I hollered and it hit the bed of the truck. I heard Dammann hollering and I ran around to the side and it must have struck him. The bottom shelf of the cabinet collapsed. The bottom shelf was setting on the forks themselves. The shelf that was setting on the clip slipped out of the clip and that caused it to tip over. These cabinets were about seven or eight feet high. The fork lift was raised at the time of the collapse about three and a half feet off the ground. The top of the cabinet was about eleven and a half or twelve feet off the ground."

Casarotto, who has had some twenty years experience in driving trucks and moving heavy machinery, testified that in his opinion this bin would not have collapsed if a skid had been placed under it. No question is raised on this appeal concerning the propriety of this testimony. Leon Souva, employed by Appellant as a machinery mover, was the safety man nearest the bin when it fell. He testified that he "might" have had his hand on it. He also testified, without objection, that there should have been a man holding onto each end of this bin.

Appellee's complaint, filed November 28, 1961, alleged that Appellant, through its employees, was negligent in one or more of the following respects.

"a. Attempted to move more sections of steel storage bins than was safe under the circumstances.

"b. Overloaded the lift truck so that it was difficult to control.

"c. Failed to use due care in lifting the ...


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