APPEAL from the Circuit Court of Cook County; the Hon. MAYER
GOLDBERG, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING: The instant case arises out of the personal injuries plaintiff Lebert White received in shifting the bogey of a tandem trailer at the truck yards of third-party defendant Mid-American Truck Lines, Inc. The trailer was owned by defendant White Owl Express, Inc., driven by defendant Charles Baker, and manufactured by defendant Strick Trailer Co., Inc. Defendants White Owl and Baker brought Mid-American into the case on a third-party complaint. Defendant White Owl appeals from a directed verdict in favor of Mid-American, contending that Mid-American was required to indemnify White Owl and from a judgment on a verdict in favor of White, contending that White was contributorily negligent. Plaintiff White appeals from a directed verdict in favor of Strick, contending that he should have been permitted to proceed on his negligence and breach of warranty theories.
Plaintiff filed an amended four-count complaint for damages. Count I alleged that he was free of contributory negligence and that his injuries were a result of White Owl's and Baker's negligent maintenance and use of the trailer. Counts II, III and IV, against Strick, alleged negligence, breach of warranty, and strict liability respectively. Count II alleged that Strick had negligently designed and manufactured the trailer which caused the injury to plaintiff. Count III alleged that Strick breached its warranty that the trailer was fit for hauling freight safely. Count IV alleged that Strick sold a defective and therefore unreasonably dangerous trailer which was designed and manufactured in such a way either that the pins holding the bogey in place would stick or that a man would have to crawl underneath it. White Owl, Baker, and Strick answered denying liability.
Furthermore, White Owl and Baker filed a third party complaint against Mid-American for indemnification on the basis of a National Motor Equipment Interchange Agreement to which both White Owl and Mid-American were parties. Mid-American answered *fn1 denying White Owl's right to indemnification. Although the full Interchange Agreement was not exhibited, the pleadings quoted its relevant provisions.
At trial, Charles Baker testified that he was employed by White Owl as a truck driver, that he drove trailer 4011 to the Mid-American truck terminal in Chicago arriving around midnight on December 4, 1963, and that upon his arrival he went to Mid-American's office bringing the bill of lading and the five copies of the Interchange Agreement report form. Mid-American's dispatcher assigned plaintiff Lebert White, Mid-American's chief "spotter," to inspect the trailer. Before going to inspect the trailer White signed the Interchange Agreement report. White completed his inspection except for shifting the bogey. (Shifting the bogey has the effect of redistributing the weight bearing on the rear axle which is necessary because of varying weight restrictions among the states.) When White attempted to shift the bogey, he was unable to do so. Both Baker and White attempted for 5 or 10 minutes to work the crank handle which releases the pins holding the bogey in place. Finally, White asked Baker to "shake" the trailer. White got underneath the trailer in order to work the tripper bar and chank handle. In shaking a trailer, the driver of the truck locks the brakes on the bogey and moves the tractor backwards and forwards in order to jar the pins loose. After Baker began shaking the trailer, he felt the trailer box slide and heard White scream. He then held the trailer in place and called for help. When he left the tractor he observed that White's right arm was caught underneath the trailer. After the incident and after White was freed and taken to the hospital, he picked up the interchange report which was laying on the ground and returned it to White Owl.
Baker testified that if the trailer had been working properly it would have required only one person to shift the bogey. That person would (1) set the air brakes on the bogey, (2) get underneath the trailer, (3) push the stripper bar up with his left hand (unlocking the mechanism), (4) turn the crank handle 90 degrees with his right hand (retracting the pins holding the bogey in place), (5) set the selector (fixing the desired location of the bogey), (6) get out from underneath the trailer, and (7) push or pull the trailer box with a power unit to the desired location.
However, trailer 4011 was not operating properly. A chain had to be installed to hold the crank handle open and the selector did not work properly. Baker testified that he could not remember when the pins on trailer 4011 ever retracted properly. The pins sometimes had to be hammered to get them to release. When this technique was used, the ends of the pins sometimes ballooned out and had to be removed with acetylene torches. Photographic exhibits were identified and admitted into evidence. Such photographs appeared to indicate that the tripper bar was disconnected.
Robert Lucas, a spotter for White Owl, testified that in 1959 or early 1960 White Owl purchased two or three new Strick trailers, including number 4011. Although he was familiar with the instructions plate on such trailers and had received instructions on the use of such trailers from White Owl's mechanic, he did not remember seeing an instruction plate on trailer 4011. He testified that the Strick trailers did not operate properly almost from the beginning. The pins would jump back into the locking holes prematurely. As a result, a chain was attached to the frame to hold the crank handle, which had to be pushed up higher than the instructions diagram indicated, in the up position so that the bogey could slide. Furthermore, the pins stuck in the locking holes. When this problem arose, various alternatives were available. The tripper bar could be pounded up and the pins could be pounded out with sledge hammers. This method sometimes caused the ends of the pins to balloon out. Also, the truck could be "shaken" with a power unit to jar the pins loose. Lucas testified that anyone would know of the trailer's unsafe condition by looking at it, but he never complained to anyone regarding its condition.
The evidentiary deposition of Noah Robinson, a spotter for Mid-American who helped free plaintiff after he had been injured, was read into the record. Robinson heard White scream and ran to help. White's right arm was caught between the trailer and the bogey. By tying a rope to the crank handle and by sliding the bogey forward, they were able to free White. Robinson testified that White Owl's trailers were in very poor condition. They appeared never to have been serviced. The pins on such trailers do stick. The first step in loosening the pins is to shake the trailer. Had Robinson known how to use the chain, he testified he would have used it.
The testimony of plaintiff Lebert White, Mid-American's chief spotter, agreed in most respects with Baker's testimony regarding what occurred. He testified that the crank handle had some "play" in it and that the tripper bar worked all right. He never noticed the chain attached to the truck and probably would have rejected the trailer had he seen it. He had never used a rope to shift bogeys and did not know if one was available. He was unable to explain what occurred. He did the same things with trailer 4011 that he had done with other trailers on numerous other occasions over his 15 year career as a spotter. Although he knew that being underneath a moving trailer was dangerous, he was unaware of any defect in the trailer. Had he been able to successfully shift the bogey, he would have returned the Interchange Agreement report to Mid-American's office.
Vince Bondi, the Chicago maintenance mechanic for White Owl, testified that White Owl did most of its major repair work at its facilities in Pontiac, Michigan, and that White Owl followed a regular schedule of preventative maintenance and relied on the reports of its drivers regarding other problems. Although the Strick trailers worked all right when they were new, the pins would occasionally stick. In such situations, the pins might be pounded with sledge hammers. As a general rule, he used a rope to pull the crank handle so that he would not have to get underneath the trailer. He stated that White Owl had installed the chain on trailer 4011.
Paul Tennenbaum, a mechanical engineer for Strick, testified that the locking holes were 1/8 inch larger than the pins, that the crank handle was designed to move only 90°, and that each bogey position is checked before the trailer is delivered to customers. He was aware that the pins on Strick trailers could stick. No instructions were given to the users of such trailers regarding what to do if the pins stuck. Although he testified that the use of a sledge hammer is not the proper method of freeing pins which are stuck, pressure on the pins and the crank handle might be necessary to free the pins. Shaking the trailer might relieve the tension on the pins; but he saw no reason why anyone should remain under a trailer while it was being shifted.
Dr. M.F. Spotts, a retired professor of engineering, testified that although he was not experienced in the design of highway trailers, he did not believe Strick's design was good. Much of his testimony was excluded from evidence upon defendants' objections for lack of proper foundation and irrelevance and an offer of proof was made indicating that the design was defective because it required someone to go underneath the trailer to shift the bogey, because the track angles into which the locking holes were drilled were constructed of material which was too thin, because the track angles could become out of line, and because the locking holes could become out-of-round due to wear and tear. In his opinion, difficulties in shifting the bogey were inevitable.
Hayden Allen, formerly a White Owl mechanic employed at Pontiac, Michigan, testified that he was present when trailer 4011 first arrived. Within two months of the date of delivery, the pins began sticking. The president of White Owl was aware of this condition and had spoken to someone about it. Although the pictures do not adequately indicate the problem, the locking holes became elongated. A chain was installed to hold the crank handle open. Although the bogey slide was greased each time the trailer came to Pontiac, the grease had no effect. To his knowledge, the steam cleaner which was available at Pontiac was never used to clean underneath the trailers. When the pins of a Strick trailer stuck, he would do whatever was necessary to release the pins including pounding the pins or shaking the trailer. He did not use a rope in working on Strick trailers.
This testimony concluded plaintiff's case-in-chief. Defendants all moved for directed verdicts in their favor. The court entered directed verdicts in favor of Baker on Count I of the complaint and also in favor of Strick but only on Counts II and III of ...