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Hedge v. Midwest Contractors Equipment Co.

AUGUST 14, 1964.

JOHN HEDGE, PLAINTIFF-APPELLEE,

v.

MIDWEST CONTRACTORS EQUIPMENT CO., INC., A CORPORATION, DEFENDANT-APPELLANT, AND AL COHN, D/B/A ALCO STEEL SERVICE, DEFENDANT.



Appeal from the Circuit Court of Cook County; the Hon. JOHN E. PAVLIK, Judge, presiding. Judgment affirmed.

MR. JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment of $175,000, entered on a jury verdict in the Circuit Court of Cook County on March 13, 1963, against defendant, Midwest Contractors Equipment Company, and from an order entered on April 26, 1963, denying defendant's post-trial motions for judgment notwithstanding the verdict or for a new trial.

John Hedge was seriously injured on April 6, 1961, when the handle of an hand winch mounted on the side of an A-frame construction truck spun around and split his skull. At the time of the accident a two-thousand pound "drum shaft" was suspended from a cable over the "A" and attached to a power winch which was not being used. The hand winch was defective since a piece had been severed from the "dog lock," and a piece of lock or bolt had been inserted between the gears to keep them from spinning.

The truck was owned by Al Cohn, d/b/a Alco Steel Service and had been loaned to John Hedge's employer, State Wrecking Company, for the purpose of removing steel from the wrecked structures. The truck was turned over to State Wrecking Company in November, 1960. It became defective while being used by State Wrecking Company. Approximately 250 to 300 tons of steel had been lifted by the truck with the makeshift gear lock arrangement prior to the accident. The jury returned a verdict for Alco Steel Service and it is not a party to this appeal.

John Hedge was a crane operator. During March, 1961, his crane broke down necessitating extensive refitting and removal of the drum shaft. The drum shaft was removed from the crane by State Wrecking Company employees and was delivered to the shop of Midwest Contractors Equipment Company for repairs. On April 5, 1961, the repaired drum shaft was picked up from Midwest by a dump truck driven by a State Wrecking Company employee. On April 6, 1961, Arlie Abbott, a Midwest mechanic, was dispatched by his foreman to State Wrecking Company to "install" the repaired drum shaft assembly in the crane. State Wrecking Company directed that John Hedge and Thomas Boles (Femmer) should help Arlie Abbott "install" the drum shaft. The drum shaft was still in the dump truck when Abbott arrived. The A-frame truck was used to lift the drum shaft from the dump truck and to transport it to the crane for positioning.

In support of its motion for judgment notwithstanding the verdict, defendant maintains that John Hedge was contributorily negligent as a matter of law. The manifest weight question has not been raised or argued on appeal. We are, therefore, precluded from considering the jury's findings that Midwest had a duty to John Hedge and that the accident occurred at a time when the installation procedure was under the control of Midwest. Haas v. Buick Motor Division, 20 Ill. App.2d 448, 450, 156 N.E.2d 263 (1959); 6 Nichols Illinois Civil Practice § 6316 (1962).

Plaintiff is permanently disabled, unable to work and a chronic hospital case because of the brain injuries suffered from this accident. Defendant has not argued that the verdict is excessive.

In ruling on a motion for judgment notwithstanding the verdict the single question is whether there is in the record any evidence which, standing alone and taken with all its intendments most favorable to the party resisting the motion, tends to prove the material elements of his case. Lindroth v. Walgreen Co., 407 Ill. 121, 130, 94 N.E.2d 847 (1950); Jines v. Greyhound Corp., 46 Ill. App.2d 364, 197 N.E.2d 58 (1964); Romines v. Illinois Motor Freight, Inc., 21 Ill. App.2d 380, 385, 158 N.E.2d 97 (1959); 3A Nichols Illinois Civil Practice § 3852 (1961). Where there is an evidentiary basis for the jury's verdict, the jury is free to disregard or disbelieve whatever facts are inconsistent with its conclusion and the reviewing court's function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable. Lindroth v. Walgreen Co. (supra at 134); 3A Nichols Illinois Civil Practice § 3856 (1961).

The testimony offered by plaintiff and defendants was contradictory on virtually every main point. Since our decision is dependent upon an interpretation of the facts in plaintiff's favor we will state the facts in his favor. Plaintiff's credibility was attacked on several occasions through the use of prior inconsistent statements. His testimony was not impeached on factors vital to his right of recovery. We will omit from the statement of facts testimony on which the plaintiff was impeached by prior inconsistent statements.

John Hedge's story established that he had worked for State Wrecking Company since he was fourteen years old — almost ten years. He had done hand laboring, driven a truck, and run a crane for about one year. He had no mechanical training but was familiar with booms and hoists and knew about pulleys and gears. He had never seen the A-frame truck until a few weeks before the accident after his crane broke. He had driven the truck forward and backward from the cab in and out of the yard and might have used the power winch on a previous occasion.

On the morning of the occurrence Hedge worked with the man from Midwest until 10:00 when he left to pay some traffic tickets. After lunch when he returned the drum shaft was suspended from the A-frame truck at a point slightly above the installation area in the crane. When the installation procedure began John Hedge stepped into the cab of the truck, the man from Midwest said "let it down." The power take off wouldn't go into gear. After trying to put the power winch in gear for a few minutes, Hedge stepped out of the truck and walked to the left side of the truck. The man from Midwest then said, "winch it down, use the hand winch on it." Hedge then put his hands on the handle of the hand winch and exerted a little pressure. The accident happened immediately thereafter. Hedge testified:

"I did not examine the hand winch before I pulled on the handle. I did not look at the gears at all. I knew that the handle would activate the hand winch. I knew that by looking at it. Just by where it was at. I did not see anything locked between the gears when I grabbed the handle. I didn't look at them. There was a handle there and I grabbed it. That's all I did, yes. No one had to remove anything from between the gears before I grabbed the handles. I did not take anything out of the gears before I grabbed the handle. I pulled the handle toward me. I pulled it down. At this time, I was standing facing the crane. I was looking at the crane. I took the handle and pulled toward me. I reached up for it. I did not have any discussion with the man from Midwest, Mr. Abbott, about not attempting to hoist this drum shaft down with the hand winch. He did not tell me to use the power winch to lower it first, and then when the load on the cable was disconnected to lower the hand winch and adjust the angle. I had no conversation with either the man from Midwest or with Femmer (Boles) regarding the danger of grabbing the handle and trying to lower it by hand when the boom shaft was attached to it. The only thing the man from Midwest told me was to winch it down when the take-off wouldn't work."

[4-8] Defendant relies on the proposition that a failure to see what is clearly visible is not such conduct as is compatible with due caution for one's own safety, or a party has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the exercise of reasonable and ordinary care. Pantlen v. Gottschalk, 21 Ill. App.2d 163, 170, 157 N.E.2d 548 (1959); Munden v. East St. Louis Light & Power Co., 247 Ill. App. 270, 274 (1928); Albers v. Continental Grain Co., 220 F.2d 847 (1955); Withey v. Illinois Power Co., 32 Ill. App.2d 163, 170-171, 177 N.E.2d 254 (1961). The question of contributory negligence is ordinarily a question of fact. It is only where no reasonable inference can be made to support the conduct of the plaintiff that it becomes a question of law. The testimony was that the defect in the dog lock was open to one who was looking for it. Taking the story of John Hedge, he knew what a winch was and didn't have to look at it to work it. He testified he was looking at the crane. In Trojan v. City of Blue Island, 10 Ill. App.2d 47, 51, 134 N.E.2d 29 (1956) a case which involved an accident caused by an hole in a sidewalk, the court stated:

"In other words, she was walking along with her son in a normal fashion, without thought of an accident. A pedestrian may ordinarily assume that a sidewalk is in a reasonably safe condition and he is not absolutely bound to keep his eyes on the sidewalk in search of possible defects."

It was peculiarly for the jury to determine whether John Hedge reasonably should have looked at the winch, and, if he should have, should he also have noticed the defective dog lock. We cannot hold as a matter of law that one has a duty to inspect a mechanism for defects before beginning to operate it.

Defendant also contends that the principle of the above cases applies because the sole purpose of the winch was to adjust the angle of the "A" and that any reasonable man exercising due care as a matter of law would not have attempted to lower a load suspended from the power cable by means of the hand winch. Several witnesses testified for defendant that the winch was only to direct the angle of the "A" and the angle shouldn't be changed while a weight was suspended. John Hedge's story was that he was directed to use the hand winch, and didn't know the functions of the individual cables. Moreover, he had never used the hand winch before. It again was a question of ...


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