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Young v. Gateway Transportation Co.

FEBRUARY 28, 1975.




APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding. MR. JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

In this action, plaintiff sought damages because of injuries suffered in a motor vehicle collision involving a moving automobile operated by James Hammer, in which plaintiff was a passenger, and a standing semitrailer owned by defendant Gateway and operated by its employee, defendant Bowen. Judgment was entered on the jury's verdicts in favor of plaintiff in her claim against Gateway and Bowen, and in favor of Hammer in her claim against him. A third-party complaint by Gateway and Bowen against Hammer for idemnity based on the active-passive theory of negligence was dismissed before the trial.

On appeal, Gateway and Bowen contend that (1) the jury was improperly instructed (a) as to alleged violations of certain statutes and regulations, and (b) as to plaintiff's claim for future medical expenses and loss of earnings; (2) no act or omission on their part was a proximate cause of plaintiff's injuries; (3) the court improperly excluded certain evidence offered by them; and (4) their third-party complaint against Hammer should not have been dismissed. Plaintiff has not appealed from the verdict and judgment in favor of Hammer on her claim against him.

Plaintiff testified that in the late afternoon, she accompanied her mother to a tavern where Hammer was working as a bartender. All three left there about 8 P.M. and went to the Viking Tap where, after about 30 minutes, her mother went home, and she and Hammer stayed until about 10:30 or 11 o'clock. Hammer was driving her to her brother's home when the accident occurred. He was driving south in the curb lane about one car length behind a semitrailer truck, and, when that truck swerved suddenly to the left, she saw another truck stopped along the west curb. She shouted, "It's a truck," and then Hammer's car struck defendants' parked truck. She saw no lights or reflectors on the truck and no flares or lanterns at the rear of the truck.

Hammer testified that he finished his work as a bartender about 7 P.M. and then talked with plaintiff and her mother until about 9 P.M., when all three went to the Viking Tap. Plaintiff's mother left there after about 30 minutes, and about 11 P.M. he offered to drive plaintiff to her brother's home. He was traveling about 30 to 35 miles per hour south on U.S. 51 in the curb lane, about a car length behind a moving semitrailer truck. When that truck swerved to the left, plaintiff shouted, "There's a truck." He then observed for the first time a truck which was stopped in the curb lane. He braked and swung to the left, but the front of his car struck the left rear wheels of the truck. He saw no lights, reflectors, flares or fuses. Hammer also stated that during the 6 years he lived in Rockford, Illinois, he had observed "No Parking at Any Time" signs along the west curb of U.S. 51, in the area of the accident.

Bowen testified he had been employed by Gateway for 7 1/2 years as a driver and, on the night of the accident, he was on a trip to Chicago for Gateway. He was on U.S. 51 in Rockford, Illinois, traveling south, when a buzzer and a red light on the instrument panel indicated a loss of air pressure, which automatically set his brakes. He was in the curb lane and came to a stop in front of Gil's Diner. During the two blocks he had been driving on the highway, he did not notice any "No Parking" signs.

Bowen also stated that before leaving the Rockford terminal, he had checked his equipment and noticed that all lights were working. When he stopped at the curb, he turned on his emergency flashers and went to the phone booth outside of Gil's Diner to call the Waddell Garage. He was in the booth when his truck was struck. The impact broke one corner light, but all the others on the truck were still working. After the arrival of the police, he released the brakes and drove the truck to the Waddell Garage, where a diaphragm from a connection in the air-brake line was replaced. He had flares but did not place them nor reflectors or any other warning indicators at the rear of the truck. He was familiar with Gateway safety bulletins requiring safety equipment, including flares, to be placed at the rear of a truck on a highway.

Bowen stated he had not been in Gil's Diner on the night of the accident. He did know Karline Hunter and saw her at the diner on the night of the accident, but he denied having any conversation with her. He was familiar with the area, but he denied knowing that there were any "No Parking" signs at the west curb, and he was impeached on that point by his deposition testimony that he knew there was no parking at the west and east curbs.

The deposition of Karline Hunter was read into evidence. She was a waitress at Gil's Diner and knew Bowen. On the night of the accident, Bowen parked his truck at the curb just north of the diner. He made no call from the phone booth outside but, instead, came into the diner where he drank coffee for 10 or 15 minutes before the accident occurred. When she heard the impact, she and Bowen ran outside and saw that an automobile had struck his truck. She noticed no lights burning on the truck, and she stated that the headlights and taillights were not lighted and that no flares were behind the truck.

Bowen told her to say she overheard him call the garage to report brake trouble and not to say he stopped in the diner for coffee. He said he would take "the disc" out of the truck and warned her that, if she wanted her job, she had better cooperate with him. Subsequently, she related to the police what Bowen had told her to say. After the crash, she heard Bowen call the Waddell Garage and say "Come over and get the disc of mine out because I had an accident" and that "I want the broken disc." During the 6 months prior to the occurrence, Bowen had been in the diner three or four times a week.



Defendants argue that the trial court committed reversible error in giving certain instructions to the jury regarding alleged statutory violations by defendants. They complain first of plaintiff's instruction No. 28, which addresses itself to the responsibility of illuminating disabled freight-hauling vehicles. This instruction paraphrased the language of the statute (Ill. Rev. Stat. 1967, ch. 95 1/2, par. 218(b)) as follows:

"There was enforced in the State of Illinois at the time of the occurrence in question, a certain statute which provided that:

`Whenever any motor vehicle which is designed and used for pulling or carrying freight is disabled during the period between sunset and sunrise and such motor vehicle cannot immediately be removed from the main travelled portion of a highway outside of a business or residence district, the driver shall cause such flares, lanterns, red reflectors or other signals to be lighted and/or placed upon ...

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