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Burns v. Howell Tractor & Equipment Co.

OPINION FILED JANUARY 11, 1977.

EDWARD J. BURNS, PLAINTIFF-APPELLEE,

v.

HOWELL TRACTOR & EQUIPMENT COMPANY ET AL., DEFENDANTS AND COUNTERCLAIMANTS-APPELLANTS-APPELLEES. — (HOWELL TRACTOR & EQUIPMENT COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT-APPELLEE,

v.

ROBERT R. ANDERSON COMPANY, THIRD-PARTY DEFENDANT-APPELLANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. HERBERT A. ELLIS, Judge, presiding.

MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearings denied March 10, 1977.

On June 18, 1967, plaintiff, Edward J. Burns, was injured when the vibratory roller he was operating on a Cook County road construction jobsite overturned. This lawsuit was commenced by plaintiff to recover damages for the serious injuries sustained by him as a result of that accident. The complaint contained two counts, both sounding in negligence. Named as defendant in count I of the complaint was Howell Tractor & Equipment Company (hereinafter referred to as "Howell"), the company which had leased the equipment plaintiff was operating at the time of the accident. Joined as defendants in count II were Cook County and its superintendent of the department of highways (hereinafter, these defendants will be collectively referred to as "Cook County").

Howell filed a third-party complaint against plaintiff's employer on the project, Robert R. Anderson Company (hereinafter referred to as "Anderson"). Anderson responded by filing a counterclaim against Howell. Also, Howell and Cook County filed cross-complaints against each other. All allegations asserted in the various pleadings filed in this cause were premised upon a claim of negligence, and all cross-claims and third-party actions were sent to the jury upon a theory of active-passive negligence.

The jury returned a general verdict in favor of plaintiff as against all defendants and awarded damages to plaintiff in the amount of $300,000. The jury also returned a general verdict in favor of Howell in its actions against Cook County and Anderson. By its answers to special interrogatories, the jury concluded that plaintiff was free from contributory negligence at the time of the accident; that the reverse mechanism on the machine plaintiff was operating was defective immediately before and at the time of the occurrence in a manner such that the defect contributed to the proximate cause of plaintiff's injuries; and that Howell was guilty of active negligence immediately before and at the time of the occurrence. The trial court entered judgment on the verdict in favor of plaintiff against both Howell and Cook County. However, judgment was not entered on the general verdict in favor of Howell, and no recovery was granted by the court to either Howell or Cook County on the actions filed by them.

Numerous post-trial motions were filed by Howell, Cook County and Anderson, including Cook County's motion for leave to amend its cross-claim against Howell to add one count predicated upon a theory of strict liability in order to conform its pleadings to the proof adduced at trial. Without specifically enumerating the court's rulings on each of these motions, the effect of these rulings can be summarized as follows: judgment in favor of plaintiff against defendants was left intact, and all other motions were denied except for the motions requesting a new trial as between Howell, Cook County and Anderson so that the question of their respective liabilities to plaintiff could be resolved.

On appeal, Howell contends that judgment should be entered on the general verdict in its favor against Cook County and Anderson, and that the order granting a new trial on such claims should be vacated. Howell does not appeal from the judgment entered against it and in favor of plaintiff. Cook County contends that it should be granted judgment notwithstanding the verdict in favor of plaintiff since first, the evidence establishes that Cook County was free from negligence, and second, Cook County hired an independent contractor, Anderson, who performed the work and leased the machine in question. In the alternative, Cook County maintains that it should be granted a new trial on the question of its liability to plaintiff due to alleged improper arguments by counsel for plaintiff and Howell. Cook County also contends that judgment should be entered in its favor on both its cross-complaint against Howell and on Howell's cross-complaint against Cook County. Anderson urges the ruling of the trial court granting a new trial be set aside and that judgment should be entered in favor of Anderson on its counterclaim against Howell. It is Anderson's position that the jury's answer to the special interrogatory finding Howell guilty of active negligence should be controlling over the jury's inconsistent general verdict in favor of Howell.

Before considering the evidence adduced at trial, closer attention must be given to the pleadings filed in this matter. By his amended complaint, plaintiff alleged that Howell negligently and carelessly failed to (1) lease safe and adequate machinery, (2) properly inspect and maintain said machinery, and (3) warn of any dangerous conditions accruing to the continued use of said machinery. Cook County was charged with negligently and carelessly (1) allowing a dangerous condition to develop and to continue in the area where plaintiff was working at the time of the accident, (2) allowing plaintiff to use dangerous and improper equipment, (3) maintaining and inspecting said equipment and supervising the use thereof, and (4) failing to warn plaintiff of the dangerous condition which existed.

By its third-party action against Anderson, Howell alleged that its negligence, if any, was passive in comparison to the conduct of Anderson because Anderson leased the equipment and utilized said equipment in a manner which was not intended for that type of machinery and which was dangerous and unreasonable. In its counterclaim against Howell, Anderson alleged that the leased equipment was defective and unsafe at the time Anderson leased it from Howell and that Howell failed to properly maintain the equipment and to warn of any risks in the continued use of said equipment.

Cook County's cross-complaint against Howell asserted similar allegations as were contained in Anderson's counterclaim against Howell. Howell's cross-complaint against Cook County basically reiterated the allegations advanced in plaintiff's complaint against Cook County. Both of these pleadings sought relief upon a theory of passive negligence.

The evidence discloses that Cook County was engaged in a road resurfacing project in Palatine, Illinois, on the date of the accident. Cook County employed Anthony Fasco as the resident engineer in charge of the project. Fasco had a trailer-office at the jobsite and was responsible for conforming the work performed with the applicable construction specifications. To this end, he was authorized to make any decision he deemed appropriate regarding the type of equipment and materials used on the job and the construction techniques employed. Anderson was hired by Cook County to perform the desired work, and Anderson's foreman, Clifford Schrader, supervised the construction activities.

Before resurfacing the road, the existing asphalt surface was broken up by using heavy road construction equipment. Anderson made the decision, which was acquiesced in by Cook County, to use the broken up asphalt as fill to form the subbase for the new surface. Consequently, the broken up asphalt was to be compacted in order to provide a sufficiently solid foundation.

Plaintiff was hired by Anderson as a machine operator some 4 or 5 days prior to the accident. Although plaintiff had experience in operating certain types of road construction equipment, he was unfamiliar with the operation of a vibratory roller, the machine he was assigned by Schrader to operate. Schrader demonstrated to plaintiff the proper procedure for operating the roller, a technique which plaintiff had little difficulty in acquiring.

The vibratory roller in question had a large circular drum on the front of the vehicle. A vibrating mechanism attached to the drum enabled the roller to produce the results of a 10-ton roller even though this particular model weighed only 5 tons. The roller was designed for use in compacting various surface materials and in finishing flat surfaces. By manipulating a single control lever in conjunction with a brake pedal, the speed and direction of the machine could be regulated. The control lever slid along a slot in the shifting mechanism. When the lever was pushed forward, the roller would travel in that direction. Reverse was accomplished by pulling the lever to the rear. A notch in the middle of the slot indicated the neutral gear position. Proper operation of the ...


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