Appeal from the Circuit Court of Cook County; the Hon. WILBERT
F. CROWLEY, Judge, presiding. Judgment affirmed.
Plaintiff, John Czochara, was employed as a trailer mechanic by the Berman Leasing Company which leased and performed maintenance on tractor-trailer units, including a number of units leased to the defendant, Howard Parlor Furniture Company.
On November 14, 1962, Joseph Clune, one of defendant's drivers, brought a tractor-trailer to Berman for repairs to its trailer brakes. Plaintiff was under the trailer attempting to fix the brakes when he was severely injured as a result of the tractor-trailer being moved by Clune. The jury found in favor of the defendant, and plaintiff's post-trial motion was denied. Plaintiff appeals.
Plaintiff alleged in his complaint that on the 14th day of November, 1962, he was employed by the Berman Leasing Company as a truck mechanic and was working in that capacity on a tractor-trailer owned, controlled and operated by Howard Parlor Furniture Co., Inc., through its agent and servant, Joseph Clune; and while in the exercise of due care and caution for his own safety, he was injured through the negligence and carelessness of the defendant in one or more of the following ways:
a. Defendant operated said vehicle in a negligent and careless manner.
b. Defendant started the motor truck in motion while plaintiff was underneath it in the act of repairing it, causing the truck to run over plaintiff.
c. Defendant failed to give notice or warning to the plaintiff before moving the truck.
d. Defendant failed to keep and maintain a proper lookout for plaintiff before putting the truck in motion.
Clune, who plaintiff first called under section 60 of the Civil Practice Act, testified that on the 14th day of November, 1962, he was employed as a truck driver by the Howard Parlor Furniture Company, when he drove his tractor-trailer furniture van onto the Berman Leasing premises for the purpose of having the trailer brakes repaired. He testified that the trailer was not a tandem and had only one set of wheels in the back.
Berman Leasing Company fronts on the west side of Oakley Avenue, which runs in a general northerly and southerly direction. It has a seven-bay repair garage, with each bay being fifteen feet in width, with a solid concrete apron running the entire length of Berman's premises to the pavement of Oakley Avenue. In our discussion of this case, the bays will be referred to as Bay No. 1, 2, 3, etc., running from North to South. From the exhibits it is difficult to tell where the apron ends and the Oakley Avenue pavement begins. It is thirty-six feet from the east wall of the bay to a row of three lampposts. The evidence does not disclose whether these lampposts are east or west of the westerly boundary of Oakley Avenue.
Clune testified that when he pulled in he parked on the left side of Oakley Avenue, facing north, with the front of his rig about even with the third bay of the garage. He was parked partly on the street and partly on the apron, and east of the lampposts. He also testified that the left side of his trailer was a few feet east of the line of posts.
After parking his truck, Clune went into Berman Leasing Company to see Christy Rogoni, the shop foreman. He then came out of Berman Leasing with the plaintiff, who said he was going to look at the brakes to see what was wrong. The plaintiff had his tools and creeper with him. He crawled under the trailer and Clune got into the cab and worked the valve as he had done on previous occasions. Plaintiff then came up to the cab and said, "This is a pretty old trailer. I don't know whether we got a valve in stock, but I will go and see." "I walked over with him to the door. He went on in the shop and I went to the telephone to call my boss." He testified that it was not unusual for mechanics to work outside at that time and place.
Clune came out of Bay No. 2 and had to go around "a bunch of stuff" that was in the way. He had to walk around a service tractor sitting up on the apron west of the line of posts and west of his truck, so he went straight out the door and then directly south to his trailer. When he passed the service tractor there was a distance of twelve feet to his unit. Once he walked past this service tractor, he never looked to the rear of his own trailer.
On direct examination by the defense attorney, Clune testified that he came out of the garage and got into the tractor. He started the motor, let it run for about thirty seconds to build up pressure in the fuel lines, and then started for the garage, to back in. After he had rolled perhaps five, six, eight feet or so, he felt a thump and heard someone hollering. ...