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Harris v. Algonquin Ready Mix

JULY 11, 1973.

RICHARD HARRIS, PLAINTIFF-APPELLEE,

v.

ALGONQUIN READY MIX, INC. ET AL., DEFENDANTS-APPELLANTS — COMMONWEALTH EDISON COMPANY, COUNTERPLAINTIFF-APPELLANT AND THIRTY-PARTY PLAINTIFF-APPELLANT,

v.

ALGONQUIN READY MIX, INC., COUNTERDEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF-APPELLEE — (PRE-CAST BUILDING SECTIONS, INC., THIRD-PARTY DEFENDANT-APPELLEE AND THIRD-PARTY DEFENDANT.)



APPEAL from the Circuit Court of Cook County; the Hon. SIGMUND J. STEFANOWICZ, Judge, presiding.

MR. JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Richard Harris, was injured when a crane came in contact with overhead high tension wires. He brought this action against Commonwealth Edison Company because of its alleged negligent maintenance of its transmission lines and against Algonquin Ready Mix, Inc., because of its alleged negligent failure to warn of the danger presented by the lines.

Commonwealth filed a counterclaim against Algonquin alleging active-passive negligence. Both Commonwealth and Algonquin brought third-party actions against Pre-Cast Building Sections, Inc., the plaintiff's employer, alleging active-passive negligence.

The jury returned a verdict in favor of the plaintiff against Commonwealth and Algonquin in the sum of $300,000. The plaintiff suffered severe electrical burns over 30% to 40% of his body, and as a result, his right arm was amputated at the shoulder, and also suffered a drop foot condition with a residual impairment. The jury also returned a verdict in favor of Algonquin on Commonwealth's counterclaim and a verdict in favor of Pre-Cast on Commonwealth's third-party complaint. The jury returned a separate verdict in favor of Algonquin on its third-party complaint against Pre-Cast in the sum of $40,000. Algonquin filed a motion to increase the amount of this verdict to $300,000, and the court granted the motion. Commonwealth, Algonquin and Pre-Cast have each appealed.

The issues for review presented by Commonwealth are (1) whether the court erred in denying Commonwealth leave to file an amended counterclaim and third-party complaint; (2) whether the court erred in failing to strike irrelevant and prejudicial testimony; (3) whether the court erred in striking exhibits properly admitted into evidence; (4) whether the court should have declared a mistrial after it made a prejudicial remark; (5) whether the court erred in denying examination on a relevant and material point; and (6) whether the court erred in preventing an adverse and hostile witness from being cross-examined.

The issues presented by Algonquin are (1) whether the court erred in denying its motion for judgment notwithstanding the verdict; and (2) whether the court erred in failing to sustain its objections to evidence of warning signs posted after the injury.

The issue presented by Pre-Cast is whether the court erred in allowing Algonquin's motion to increase the amount of Algonquin's verdict against Pre-Cast from $40,000 to $300,000.

At the time of the accident Pre-Cast was engaged in dumping defective concrete slabs on property belonging to Algonquin, pursuant to an agreement whereby Pre-Cast had some place to dump its slabs. Algonquin thereby obtained fill to make the property more suitable for future industrial development.

Harold Anson, who was both the executive vice-president of Algonquin and the president of Pre-Cast, personally went out on the property and selected the low spots in the southwest portion of the property to be so filled.

On the morning of August 14, 1964, the plaintiff, an eighteen-year-old employee of Pre-Cast, was on the ground next to the crane which was being used to dump the slabs. As the boom swung around, Harris grabbed the slab to guide the drop. A witness testified he saw sparks flying and then saw Harris stiffen up and fall backwards. He did not know whether the boom actually touched the wires when the sparks appeared, but afterwards the boom was resting on the lines.

Anson testified he knew there were wires on poles at the south end of the property but was never informed they were high tension wires carrying 34,500 volts of electricity. There had been no warning signs of any kind posted in the area prior to the accident. Two Commonwealth line patrolmen testified they did not warn of the dangers even though they knew Pre-Cast had a crane in the area and it was part of their responsibilities to do so.

Commonwealth first contends the court erred in denying leave to file an amended counterclaim against Algonquin and an amended third-party complaint against Pre-Cast Building Sections, Inc., at the close of the plaintiff's case. Commonwealth states it sought to delineate "the nature of the relationship that existed between Algonquin and Pre-Cast and to conform the pleadings to the proof," and alleged that either Pre-Cast was operating as the agent of Algonquin or, in the alternative, that both companies were parties to the joint venture of excavating and filling the area near the lines at the time of the accident.

Commonwealth argues the mere fact the jury found against it on each of the charges against Pre-Cast and Algonquin is not dispositive of the question of liability because the unique negligence of each when demonstrated to be joint would have been considered differently by the jury with regard to liability.

• 1 Section 46 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, § 46) provides that amendments may be allowed prior to final judgment "on just and reasonable terms." The case law is well settled that whether or not a party may be allowed to file an amended pleading pursuant to Section 46 is within the discretion of the trial judge. ...


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