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Danzico v. Kelly

APRIL 22, 1969.

LOUIS DANZICO, PLAINTIFF-APPELLANT,

v.

BEVERLY KELLY AND JAMES KELLY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Reversed and remanded with directions.

MR. PRESIDING JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

Rehearing denied July 31, 1969.

This is an appeal by the plaintiff, Louis Danzico, from a judgment for $2,500 entered in his favor for personal injuries and against the defendant, Beverly Kelly, pursuant to the verdict of a jury. (Prior to trial, the co-defendant, James Kelly, who is the husband of Beverly Kelly, was dismissed from the instant litigation on motion of the plaintiff.) In this appeal, the plaintiff asks that the judgment in his favor be reversed and the cause remanded for a new trial on the issue of damages only, or alternatively, that the judgment be reversed and the cause remanded for a new trial on all the issues. The amount of the jury award in this case is less than the damages incurred by the plaintiff for his paid medical expenses and lost time from work. The facts follow.

This case involves a collision which occurred on November 3, 1958, between an automobile driven by the defendant, Beverly Kelly, and a parked Chicago Transit Authority (hereinafter referred to as C.T.A.) truck. As a result of this collision it was alleged that the plaintiff was knocked off his feet and struck his spine against the street curb. At the time of the accident the plaintiff was engaged in his duties as a C.T.A. laborer and was assisting three co-workers in unloading a heavy, wooden, empty salt box from the rear of the parked truck. The collision occurred at approximately noon on Austin Boulevard at and near its intersection with Bloomingdale Avenue in Chicago. The weather was sunny, dry and clear. The evidence shows that the defendant was driving south on Austin Boulevard and struck the rear end of a parked C.T.A. truck which was in the curb lane of southbound Austin Boulevard at the time. At the time of the collision, the plaintiff was standing on Austin Boulevard and had his back turned to southbound Austin Boulevard traffic. He did not see the car of the defendant approaching. As a result of the collision between the car and the truck, the plaintiff dropped the empty salt box, which he had been partially holding with a co-employee, and was thrown against a curb where he struck his spine.

In his amended complaint, the plaintiff charged the defendant with one or more of the following wrongful acts:

(1) Failed to properly operate and control her automobile considering the traffic and the use of of the roadway.

(2) Operated and controlled her automobile without keeping a good and sufficient lookout ahead.

(3) Failed to give warning to persons properly in the roadway.

In its answer, the defendant denied these allegations and averred that the proximate cause of the plaintiff's injury was the negligence of the plaintiff and his co-employee in the operation and unloading of the truck at the time of the collision.

At the trial five eyewitnesses to the collision testified. They were the plaintiff; the defendant; and three members of the C.T.A. crew — John Lubner, who drove the truck in question; Joe Lobue, who was standing on Austin Boulevard with the plaintiff and was aiding him in unloading the empty salt box from the truck; and Salvatore Toia, who was on the truck itself and was tipping the salt box at the time of the collision. The other member of the crew, who was on the truck with Toia, had died prior to trial.

The driver of the C.T.A. truck, John Lubner, testified that the accident occurred at the entrance to a viaduct. There was a downgrade in Austin Boulevard as one approached this viaduct traveling south. (Photographs of Austin Boulevard where admitted into evidence to aid the jury in evaluating the physical aspects of the accident scene.) Lubner parked the C.T.A. truck about six feet within the viaduct. His truck's front door on the right side was parallel with the viaduct's first concrete pillar. Lubner further stated that he then activated a mechanism which caused both rear lights of the truck to blink on and off. Earlier that morning, the crew had wired one red flag on each side of the truck's rear. There were also red flags in the truck which were bottomed in separate stands.

As this witness was leaving his truck from the curb lane side, the collision occurred. He regained consciousness at the scene of the accident and was taken to a hospital. He stated that he did not hear any horn or screeching of brakes before the impact nor was any warning given. He did not observe the plaintiff taking the salt box off the back end of the truck. Before the accident occurred, the plaintiff had walked to the rear of the truck, however. The empty salt box in question weighed 250 or 300 pounds. When the crew unloaded salt boxes, they dropped the truck's tailgate by loosening the supporting chains so that the tailgate was then even with the body of the truck. The salt boxes were then pushed from the body of the truck, onto the tailgate, and eventually to the street. Two men stood on the truck and two other men stood in the street gripping each side of the salt box as it was lowered to the street's surface.

Joe Lobue corroborated Lubner's testimony regarding the rear red lights of the truck blinking on and off and the red flags being wired to each side of the truck at its back end. In addition, Lobue stated that when Lubner stopped the C.T.A. truck, it was facing south and was four to six feet into the viaduct. The plaintiff then took a red flag, which was about four feet high and positioned in a stand, and placed it on Austin Boulevard about twenty-five or thirty feet behind the truck, which had been parked in the right curb lane. When the collision occurred, the plaintiff and this witness were on Austin Boulevard and were holding opposite ends of a salt box which was being tipped from the truck by two co-workers. The plaintiff was in the lane closest to the curb when a car struck the parked truck and pushed the C.T.A. vehicle forward. Lobue did not see the car approaching as he had his back to it. He did not hear anything before the collision, and after the truck was struck, he saw that the salt box was lying on top of Salvatore Toia.

Salvatore Toia testified that Lubner parked the truck one quarter of its length inside the viaduct and three quarters outside the viaduct. This witness also saw the plaintiff put a red flag, bottomed in a stand, on Austin Boulevard about twenty-five or thirty feet behind the truck. This was done after the vehicle had stopped. When the car of the defendant struck the parked truck, the salt box was near the edge of the tailgate. The impact of the collision caused the chains supporting the tailgate to break which in turn lowered ...


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