APPEAL from the Circuit Court of Cook County; the Hon. JACQUES
F. HEILINGOETTER, Judge, presiding.
MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 12, 1975.
This litigation was begun by a truck driver who sued two oil companies for personal injuries he sustained at an oil refinery owned by one of them. The case was heard by a jury that returned a verdict in favor of the truck driver. After hearing a post-trial motion, the court ordered that judgment notwithstanding the verdict be entered in favor of the oil company which was then the only defendant in the case. Alternatively and conditionally, it denied the company's motion for a new trial. The issue in this appeal is whether the trial court erred in entering judgment notwithstanding the verdict.
For about 18 months prior to June 6, 1967, James Reynolds was a truck driver for Jones and Cleary Roofing Company of Chicago. His job required him to go at least once a day to a refinery owned by the American Oil Company in Whiting, Indiana and there obtain a tank truck load of asphalt or pitch. Sometime near 6 p.m., in the evening of June 6, Reynolds went to the refinery to get a load of hot asphalt. He entered a yard where his truck was weighed; a receipt was given him for his order, he went to a shed where refinery employees waited for assignments, and then Reynolds proceeded to a loading rack to which he was assigned to load his truck. The two refinery employees went to activate the asphalt pump that was used in the loading process.
Reynolds had been in the refinery yard on many occasions before. He knew the tank truck loading procedure because he had been shown it by American Oil employees. At the time, there was in existence a series of instructions given by American Oil to its employees concerning the loading of tank trucks at its refinery. In these instructions, American Oil had mandated that non-employee truck drivers were not to use any of its refinery equipment. The spout that was used in loading asphalt into tank trucks was an apparatus the company told its employees was not to be used by any non-employee truck driver. Reynolds, however, was not told of these instructions or the prohibition they contained; he was never shown a copy; there were no signs at or near the loading place telling him he was prohibited from using company equipment or that there was any danger in the tank truck loading procedure.
On the day in question, Reynolds went to set up his truck, being told to do so by the refinery employees who went out to start the pumps. So, as he had done some 900 times before, he began the loading procedure. This required him to go to a loading dock, climb to the top of the truck, lower a ramp over the truck's cylindrical tank, and pull the swing arm of a spout from which hot asphalt could flow into the tank's aperture. When, on this occasion, Reynolds reached the top of the truck, he opened the hatch and then walked to the swing-loading arm that was resting against the loading dock. He took hold of the handle with his right hand; and with his left, seized a cable attached to it. This was the procedure Reynolds had been shown by refinery employees. When, this time, he touched the swing arm, it moved from the dock, but with some difficulty. Reynolds knew that the attached cable was a counterweight device used to pull the arm back to the dock after the loading process was completed. As he pulled the swing arm, the cable in his left hand either broke or gave way, causing him to fall to the driveway below. He was injured and was taken later to a nearby hospital for treatment. As a result, he incurred a total of $3,742 in medical expenses.
To recover for his injuries and the damages he suffered, Reynolds filed a one-count complaint against American Oil and another company, Standard Oil of Indiana. He alleged that the two companies owned the refinery in question; that he sustained serious injuries there when, while loading his asphalt tank truck, the handle of a loading pipe broke loose without warning and caused him to fall a great distance to the ground.
The companies filed a joint answer in which American Oil admitted owning the refinery, but Standard denied it had any interest in the place where the accident occurred. Then, the case went to trial before a jury; and after Reynolds had presented his evidence and rested, he asked leave to amend his complaint. Neither defendant objected. An amended complaint, containing two counts, was filed. Count I repeated the original allegations with additional ones concerning the loading pipe which Reynolds claimed had caused his injuries when it either broke or pulled loose without warning. Count II alleged the factual occurrence described in Count I; but in addition, it charged six acts of negligence which Reynolds attributed to the two companies. He claimed that (1) on the day in question, they failed to provide proper personnel to load his truck; (2) they failed to provide proper personnel to supervise and/or warn him of the dangers involved in setting up or loading his truck; (3) they failed to provide any sign or other means of advising him of the proper way of setting up or going about the tank truck loading procedure; (4) they provided a faulty counterbalance cable on the handle to the loading pipe knowing, or they should have known, that the cable might be used to move the pipe; (5) they provided a faulty counterbalance cable on the loading pipe which they knew, or should have known, would slacken or pull loose if pulled on to move the loading pipe; (6) they failed to provide any warning concerning the danger of pulling on the counterbalance cable or moving the loading pipe.
Neither company answered the amended complaint. However, both moved for a directed verdict. The court allowed the motion as to Standard but denied it as to American Oil. Thereafter, as the only remaining defendant, American Oil put on its defense. At the close of all the evidence, it made a motion for a directed verdict. The trial court denied the motion. Then, the cause was argued, the jury was instructed, and after deliberating, it returned a verdict of $50,000 in Reynolds' favor. Within the time allowed by law, American Oil filed a post-trial motion which, among other relief, prayed for a judgment notwithstanding verdict. The trial court heard the parties and then ordered that judgment be entered in favor of American Oil notwithstanding the verdict that had been returned in Reynolds' favor. Alternatively and conditionally, it denied a new trial.
• 1, 2 In determining whether the trial court erred in entering judgment for American Oil notwithstanding the verdict, we must look at the evidence on which the jury deliberated and returned its verdict. The motion which the trial court granted, or one for a directed verdict, presents the same kind of issue; they are governed by the same rules of law. (Yates v. Cummings, 4 Ill. App.3d 899, 282 N.E.2d 261.) In each instance, the determination to be made is whether all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict, based on that evidence, can ever stand. (Darda v. Chicago Transit Authority, 100 Ill. App.2d 94, 241 N.E.2d 478.) It is now settled law in this state that verdicts ought to be directed and judgment notwithstanding the verdict entered only in those cases in which the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on such evidence can ever stand. (Pedersen v. Kinsley, 25 Ill. App.3d 567, 323 N.E.2d 562; Homka v. Chicago Transit Authority, 2 Ill. App.3d 334, 276 N.E.2d 351.) Therefore, where the evidence shows a substantial factual dispute, or where assessment of witness credibility and election between conflicting evidence may be decisive, it is error to direct a verdict or enter judgment notwithstanding the verdict. Lovejoy v. National Food Stores, Inc., 12 Ill. App.3d 982, 299 N.E.2d 816.
In this case, when the jury deliberated, it had before it Reynolds' testimony in which he described how he went to the American Oil refinery in Whiting, Indiana, on June 6, 1967, to load his truck with asphalt; how, as he had done before, he went to the top of his truck where he employed the loading procedure he had been shown by refinery employees. He explained to the jury how he stepped from the loading dock to the top of his truck, took hold of a cable and a handle on the pipe; and that the cable attached to the pipe which he was to use in the loading process either became loose or broke causing him to fall to the ground and suffer his injuries. Three witnesses for Reynolds testified concerning the medical treatment that was given him for his injuries. A 31-year employee of the refinery, called as an adverse witness, testified that at the time of the incident in question, he was the shift foreman in the asphalt area where the accident happened. This witness knew the loading operation for tank trucks at the refinery. He told the jury about the counterbalance cable to which Reynolds had referred in his testimony and that if the cable were held by a person "* * * you would have a bunch of free cable and all of a sudden it will snap back and that will hit you in the face." He emphasized to the jury the danger that existed in the use of the counterbalance cable; and ...