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Jirik v. General Mills

JUNE 17, 1969.

JAMES L. JIRIK, PLAINTIFF-APPELLEE,

v.

GENERAL MILLS, INC., DEFENDANT-APPELLANT.



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

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

Plaintiff, James Jirik, brought suit against General Mills, Inc. and Screw Conveyor Corporation for property damages to his truck and trailer. Trial was without a jury. At the close of plaintiff's case, the court granted defendant Screw Conveyor's motion for a directed verdict. The propriety of that action is not questioned in this appeal. At the close of all the evidence, the court entered judgment against General Mills for $7,320.82. General Mills appeals from that judgment contending: (1) there was no evidence of specific negligence on the part of defendant; (2) the doctrine of res ipsa loquitur is inapplicable in the instant case; (3) the trial court erred in allowing plaintiff to amend his complaint by adding a count based upon res ipsa loquitur at the conclusion of plaintiff's case; and (4) defendant met his burden under res ipsa by showing that the damages were caused by plaintiff's negligence. It is not claimed that the damages awarded are excessive.

On January 15, 1964, a semi-tractor truck and trailer unit owned by plaintiff, was damaged extensively at the General Mills Rialto grain elevator. Before the accident, the unit, which he had purchased new in 1960, was in excellent condition. It had travelled 275,000 miles. On January 7, 1964, plaintiff left the truck terminal in Hammond, Indiana to transport a load of steel to Wichita, Kansas. Prior to departure, the unit was inspected and found to be in satisfactory condition by an Interstate Commerce Commission inspector. On his return trip from Kansas, plaintiff was hauling defendant's grain to its elevator. During the trip he checked the vehicle five times. He was a mechanic, had occasion to repair trucks, and did the maintenance work on his own unit. He was familiar with the pins or bolts which secure the rear springs of the truck. Plaintiff testified that these bolts were all present. He arrived at defendant's elevator about 11:30 a.m. with a passenger, Donald Butler. About 1:00 p.m. he was instructed to back his truck onto defendant's lift which had been manufactured and installed by the Screw Conveyor Corporation. He then got out of the truck as per regulations.

The lift, operated by a General Mills employee, is essentially a movable platform. After the truck is backed onto the platform, wheel stops are placed behind the rear wheels. The lift then raises the front of the truck to an angle of 30 to 35 degrees. By force of gravity the grain is then emptied from the rear of the trailer into a grain bin.

Plaintiff's truck had been unloaded in such manner about 75 times. However plaintiff and his passenger testified that the procedure employed this time was different from what they had observed previously. Ordinarily, the truck was raised in stages so as to allow a gradual flow of the grain. But on this occasion the truck was elevated in one continuous movement, so that the grain did not flow properly, but rather rushed to the rear of the trailer and came out from the top and the sides. The truck dumper was also raised to its maximum elevation, rather than the usual procedure of only partially elevating the mechanism. They also testified that the accident occurred after the truck was empty, and the lift had started to descend. The operator activated the lever to lower the lift, but it seemed to jerk or bounce as if it did not catch properly. The lift was lowered quickly for a few feet, then came to an abrupt halt, and the truck fell off backwards. The whole back end of the trailer started rolling towards the plaintiff, and the unit was damaged extensively. Subsquent to the occurrence, plaintiff made grain deliveries to defendant's elevator, and the lift was raised and lowered in gradual stages.

The plant superintendent of defendant's elevator, called as an adverse witness under Section 60 of the Civil Practice Act, testified that the mechanism had been in use since 1962. No vehicle had ever been turned back because of improper mechanical condition, the assumption being that if a vehicle is capable of coming in with a load of grain it is capable of being unloaded. The lift was maintained by a crew employed by defendant. A manual furnished by the manufacturer warned that an accumulation of water, dirt and other material could be detrimental to the operation of the mechanism. Water in the hydraulic oil could cause excessive corrosion, in turn causing vibration and wear. At the time of the accident, 1,600 trucks had been unloaded; at the time of trial, 7,500 trucks had been unloaded at this elevator. No other accidents ever occurred in connection with the operation of this mechanism.

The court then granted plaintiff's motion to amend his complaint by adding a count based upon res ipsa loquitur. The plaintiff rested, and the defense presented its witnesses.

Donald Schaetzel, an engineer employed by defendant, investigated the accident in question. On January 23, 1964, he examined the vehicle and had photographs taken under his direction. He testified that the accident was caused, as shown in the photographs, because parts were missing in the rear wheel assembly of the truck. Seven of the eight necessary bolts in the assembly were missing. Corrosion in this assembly indicated that the parts had been missing for a period of time. If the missing bolts were in place, a jerky or jumpy motion would have had no effect on the trailer unit. Another witness testified as an expert that the absence of the bolts retaining the springs in the rear housing assembly would be the direct cause of the accident. Two employees of Screw Conveyor and defendant's plant superintendent testified that after the accident they inspected the trailer unit and found bolts missing from the assembly.

The operator of the lift testified that he had raised the elevator in gradual stages as he had been taught. The lift was not raised to its maximum elevation, and the mechanism was not being lowered at the time of the accident. After the truck was emptied of grain, he helped plaintiff fold a canvas. As he was walking back to the controls he heard a noise, saw the truck coming down and ran.

We will first consider General Mill's contention that the doctrine of res ipsa loquitur is not applicable in this case.

To apply the doctrine of res ipsa loquitur, plaintiff must establish that the injury was caused by an agent or instrumentality within the control or management of the defendant, that plaintiff was free from contributory negligence, and that the result is one normally not occurring without negligence in the control or management of the agency or instrumentality. Cobb v. Marshall Field & Co., 22 Ill. App.2d 143, 159 N.E.2d 520 (1959).

In Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 207 N.E.2d 305 (1965), our Supreme Court stated at p 449:

"Whether the doctrine [of res ipsa] applies in a given case is a question of law which must be decided by the court, but once this has been answered in the affirmative, it is for the trier of fact to weigh the evidence and determine whether the ...


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