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Cunningham v. Central & Southern Truck Lines

DECEMBER 31, 1968.




Appeal from the Circuit Court of Lawrence County; the Hon. RANDALL S. QUINDRY, Judge, presiding. Reversed and remanded.


About ten-thirty o'clock on the evening of November 21, 1964, Donald D. Cunningham, accompanied by Ross Montgomery, his employee, was driving his G.M. Tractor and attached semitrailer, loaded with oil field pipe, in an easterly direction on U.S. Route 50 in Lawrence County. Coen Reed, also an employee of Cunningham, was driving a pickup truck belonging to Cunningham in an easterly direction on Route 50, to the rear of the tractor-trailer driven by Cunningham. West of the pickup truck, and also proceeding east on the same highway, William T. Shaver was driving a tractor-trailer belonging to defendant, Central and Southern Truck Lines, Inc. The truck driven by Cunningham made a right turn off of U.S. Route 50 into a gravel road leading south, referred to in the record as Gulf Oil Road. The truck driven by Shaver came in contact with the truck driven by Cunningham, or the pipe loaded thereon, and as a result of the impact, Mr. Cunningham was pushed forward in the cab and against the steering gear, receiving injuries from which he died the following afternoon.

Thereafter a two-count complaint was filed in the Circuit Court of Lawrence County by Thelma E. Cunningham, widow of Donald D. Cunningham, and against Central and Southern Truck Lines, Inc., the owner of the truck involved in the collision, and against Wm. T. Shaver, its driver. The first count of said complaint was brought by Thelma Cunningham, in her representative capacity as administrator of the estate of Donald D. Cunningham, and sought to recover for the alleged wrongful death of Cunningham. In the second count she, individually, sought to recover the damages she sustained in the payment, by her, of her husband's funeral expenses.

The defendants filed a joint answer admitting some of the allegations of the complaint, but denying all of the alleged charges of negligence. The corporate defendant, Central and Southern Truck Lines, Inc., filed a counterclaim and thereafter an amended counterclaim, which alleged, among other things, that counterdefendant's intestate, Donald D. Cunningham, in making the right turn, caused the rear portion of his trailer "to be on the left half of the roadway obstructing the path of counter-claimant's motor vehicle," and that when he, Cunningham, turned the tractor and trailer he was driving onto the intersecting highway, he left "extending out onto the paved portion of the highway and across the center line into the left traffic lane, approximately seven feet of iron oil field casing with no light of any kind thereon to warn drivers of vehicles following, of the presence of said pipe."

The issues made by the pleadings were submitted to a jury, resulting in a verdict for the plaintiff on count two for $1,179. On count one, the jury found for the plaintiff, administrator, and assessed damages at $50,000 and apportioned them as follows:

To Thelma E. Cunningham ...... $20,000 To Timothy Dee Cunningham ..... 10,000 To Scott Nelson Cunningham .... 10,000 To Laura Marie Cunningham ..... 10,000

The jury found against the corporate counterclaimant on its counterclaim and answered a special interrogatory finding that Donald D. Cunningham was in the exercise of ordinary care for his own safety at the time of, and immediately prior to, the collision. Upon the return of the verdicts, the court entered judgment on count two for the plaintiff, and against the defendants, for $1,179, and upon its own motion entered judgment for the plaintiff on count one and against both defendants for $30,000, and apportioned the judgment among the parties in interest as follows:

To Thelma Cunningham ........ $12,000 To Timothy Dee Cunningham ..... 6,000 To Scott Nelson Cunningham .... 6,000 To Laura Marie Cunningham ..... 6,000

The post-trial motion of defendants was subsequently heard and overruled, and defendants appeal.

The evidence is that on November 21, 1964, Donald D. Cunningham was engaged in the oil field contracting business in Lawrence County and surrounding area, and had been so engaged for some time, and that Ross Montgomery and Coen Reed were two of his employees. At the direction of Cunningham, Messrs. Reed and Montgomery took a G.M. Tractor and semitrailer belonging to Cunningham to Clay City, Illinois, and there picked up a load of oil field pipe casing, which was to be delivered by them to a well site in the Bridgeport area. They arrived in Clay City about 2:30 o'clock in the afternoon, and after loading their truck proceeded to their destination. They had some mechanical trouble with the truck, and at Noble, Illinois, they stopped and phoned their employer, Donald D. Cunningham, and he came in his pickup truck and did some work on the truck, which up to this point had been driven by Montgomery. Mr. Montgomery refused to drive any further, and when the truck and semitrailer left Noble about eight o'clock in the evening, it was being driven by Cunningham and Montgomery accompanied him, riding in the cab of the truck to the right of, and beside, Cunningham. After leaving Noble they stopped twice and Cunningham and Montgomery did some further work on the truck. The Gulf Oil Road intersects Route 50 about two miles west of the Bridgeport intersection, and runs in a southerly direction. When Cunningham, accompanied by Montgomery, reached a point approximately 1,000 feet west of the Gulf Oil Road, the evidence is that Cunningham gave a right turn signal. At that time the pickup truck, driven by Coen Reed, was proceeding easterly on Route 50 some 200 or 250 feet to the rear of the truck being driven by Cunningham, and to the rear of this pickup truck driven by Reed, proceeding in an easterly direction, was the truck of defendant, Central and Southern Truck Lines, Inc., being driven by defendant, Wm. T. Shaver.

Mr. Montgomery, who was in the cab of the truck being driven by decedent, was called as a witness for the plaintiffs, and he testified that he was 31 years of age, and that prior to November 21, 1964, he was employed by Cunningham as an operating engineer, and had been for four or five months; that at about 2:30 o'clock on the afternoon of that day he and Coen Reed, at the direction of Cunningham, loaded fifty-five 5 1/2-inch casing pipe on the GMC tractor and flatbed trailer belonging to Cunningham; that the length of each pipe was 31 feet, 9 inches; that 13 pipes made up the bottom row on the bed of the truck; 12 pipes were in the second row; 11 on the third row from the bottom; 10 on the fourth row; and 9 on the top or fifth row; that each row had one less, because the pipes, as one witness expressed it, "set in the groove of the other pipe as they are stacked and the collars (or couplings) are staggered so they will fit." After being so loaded, the pipes were fastened on the trailer by three log chains and boomers. The overhang of the pipe at the front of the semitrailer and back of the cab was two feet, and the overhang at the rear of the semitrailer was four feet.

Mr. Montgomery further testified that as they proceeded east on Route 50 toward the Gulf Oil Road intersection, they were going between 45 and 50 miles per hour; that he observed through the rearview mirrors that Coen Reed was driving the pickup truck, which was to their rear, about 200 or 250 feet; that the tractor in which he was riding slowed down to five miles per hour to make the right turn off of main Route 50 and into Gulf Oil Road; that at the time of the impact the left rear wheel of the attached trailer was on the pavement, and that the right wheel of the trailer was either off the pavement or just at its edge; that he did not realize that a vehicle had struck the tractor-trailer in which he was riding, but "thought the boomers had broke loose and had let the pipe go forward and unload."

Mr. Montgomery further testified that there was a light on each corner of the bed on the rear of the Cunningham trailer, and a bar light in the center consisting of three lights, and turn signal lights were located on each side of this bar light; that the signal lights at the rear were on the same circuit with the tractor lights, and that all these lights, as well as the lights on the tractor, were functioning on the night in question. He also testified that there was no light or lantern attached to any of the pipe which extended over the rear end of the trailer, but a couple of red flags had been attached to the ends of the pipe. As a result of the collision, all of the casing pipe fell from the trailer and came to rest south of the pavement and east of the traveled portion of Gulf Oil Road. The tractor-trailer unit driven by Shaver stopped on the north side of the pavement on Route 50, headed east.

On direct, as well as in his cross-examination, this witness was positive that none of the pipes on the truck, as it made the right turn from Route 50 into Gulf Oil Road, extended into the westbound traffic lane on Route 50, and that when it stopped on Gulf Oil Road, the rear of the semitrailer was six feet and seven inches south of the south edge of the pavement. He further testified that after the Cunningham truck stopped, he, Montgomery, got out of the cab, walked to the driver's side and observed that Mr. Cunningham's body was "jammed in between the steering wheel and the back of the truck"; that he then lifted him from the cab, and shortly thereafter he was removed to the hospital at Lawrenceville.

Counsel for appellants insist that the trial court erred in refusing to permit defendant, Wm. T. Shaver, to testify, and argue that inasmuch as Montgomery testified on behalf of the plaintiffs to the transaction between the defendant Shaver and decedent, that, in order to place the parties on an equal footing, defendant Shaver should have been permitted to testify to the same matters concerning which Montgomery testified. Counsel say that the evidence discloses that Montgomery was at the time of the occurrence in question, an employee and agent of decedent, and engaged in the transaction of his business; that at the time of the occurrence and prior thereto Montgomery was in the cab of the tractor then being driven by decedent, and testified on behalf of ...

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