APPEAL from the Circuit Court of Cook County; the Hon. JAMES
D. CROSSON, Judge, presiding.
MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Robert M. Ragan (hereafter plaintiff) brought an action against Fourco Glass Company and Rolland Glass Company (hereafter collectively referred to as defendant) *fn1 alleging negligence in connection with the loading of a truck shipment of crated glass. *fn2 The case was submitted to the jury and a verdict in favor of plaintiff in the amount of $28,000 was returned. Thereafter, the trial court granted defendant's motion for judgment notwithstanding the verdict. Plaintiff appeals from that order.
The judgment notwithstanding the verdict was entered on May 31, 1974. Plaintiff timely filed his notice of appeal on June 13, 1974. Defendant subsequently moved the trial court to amend its order to conditionally grant defendant a new trial should the judgment notwithstanding the verdict be reversed on appeal. This motion was granted by the trial court on June 20, 1974. Plaintiff filed an amended notice of appeal, appealing also from the order conditionally granting a new trial.
Although the precise basis upon which the judgment notwithstanding the verdict was granted is not clear, counsel for both parties in their arguments have assumed it was plaintiff's alleged contributory negligence. We also make this assumption. This appeal raises the question of whether the trial court erred in granting the judgment notwithstanding the verdict because plaintiff was not contributorily negligent as a matter of law.
The relevant facts are as follows. At the time of the occurrence out of which this suit arose, plaintiff was a 19-year-old student employed on a part-time basis as a freight assembler by Midway Industries Incorporated (hereafter "Midway"). During the course of his 1 1/2 years employment in that capacity, he was called upon from time to time to unload trucks which arrived at Midway. On November 29, 1968, a shipment of crated glass from defendant was transported to the Midway premises. The truck was backed down and into a loading dock located next to the Midway building. The dock area is constructed at an angle of approximately ten degrees sloping downward towards the building.
The glass was shipped in two different types of containers, "pallets" and "window glass boxes." The pallets were constructed from a framework made from 2 x 4 inch boards to which 1 x 6 inch slats were affixed. Inside this box type structure there would usually be about 200 sheets of glass. The size of a particular pallet would be determined by the dimensions of the glass which it was designed to store. The largest of these glass sheets were 46 x 54 inches. The pallets containing these large sheets were about 6 1/2 feet long and 4 feet high. The width of the pallets ranged from 12 to 36 inches and the weight ranged from 1,000 to 2,000 pounds. The window glass boxes were substantially smaller than the pallets and weighed only about 100 pounds.
The shipment contained 18 pallets and 50 window glass boxes. Eight pallets were arranged in double file across the back of the truck. Behind these pallets, several more pallets were single stacked and between 25 to 30 boxes were arranged in rows across the width of the truck. The above mentioned pallets were braced with 2 x 4 inch boards which were nailed onto either the bed or sides of the trailer. The window glass boxes were braced with another board which extended across the entire width of the truck. Behind the boxes, and on the right side as one looked into the truck from the rear, rested a 12- to 14-inch wide pallet which had been loaded onto the truck in an unusual manner. This pallet (which eventually fell on plaintiff) stood about halfway up the truck and perpendicular to the sides of the truck. It was not braced by 2 x 4 boards or in any other manner. Approximately 12 to 14 window glass boxes were located behind this pallet and other pallets were placed near the front of the truck. These latter pallets and boxes were braced in the usual manner.
Plaintiff testified that he reported for work shortly before 7:30 a.m. on November 29, 1968. He was instructed by his immediate supervisor, Glenn Calvert, to help Calvert unload the truck. Although plaintiff did have experience with other types of cargo, this was the first time he unloaded a glass shipment. Prior to beginning the task, plaintiff received certain warnings from Calvert. He was told to watch his hands and his feet and to be careful. The two men began unloading pallets and window glass boxes from the rear of the trailer. Upon removal of approximately 15 boxes, Calvert and plaintiff became aware of the unbraced pallet. Calvert again told plaintiff to be careful. Plaintiff was also warned to not bump the pallet. They continued unloading the boxes directly in front of the pallet. Calvert would lift one end of the box while plaintiff, with his back to the unbraced pallet, slid a dolly, or wooden platform on wheels, underneath it. The box would then be rolled off the truck.
They were engaged in the removal of the last box in front of the unbraced pallet when the accident occurred. The pallet fell towards plaintiff and the rear of the truck as he was working with his back to the pallet, one or two feet away from it. Somebody told plaintiff to move out of the way. He managed to take a few steps towards the rear of the truck, but the pallet caught his right ankle and pinned it to the floor of the truck.
On cross-examination, plaintiff stated that, due to the incline of the dock, one needed to walk uphill to proceed further into the truck. He was aware of the general tendency of objects to slide back towards the dock. Plaintiff further testified that the pallet could not have fallen without removal of the window glass boxes in front of it. Although he did not know the cause of the pallet tipping over, plaintiff did not think it was due to any vibration in the truck. Although it would have been possible to unload the freight in front of it, plaintiff stated it would probably not have prevented the accident. On redirect examination, plaintiff testified that neither he nor Calvert came in contact with the pallet before it fell.
Calvert also testified on behalf of plaintiff. On November 29, 1968, he was employed as a foreman by Midway and had 10 years of experience unloading trucks. Plaintiff worked under him and was directed to assist him in the unloading of a truck from defendant. Calvert and plaintiff were the only persons engaged in the unloading operation and the only witnesses to the accident. While unloading the window glass boxes, Calvert became aware of the unbraced pallet. He told plaintiff to not hit the pallet because it might fall over and that, when they got to the pallet, more help would be needed to get it out. As they were removing a window glass box in front of the pallet, Calvert saw the pallet tipping and yelled for plaintiff to get out of the way. The witness further testified, on cross-examination, that he advised plaintiff to exercise caution, that the pallet was not braced and could fall over. On redirect examination, Calvert stated he did not know of anything that had hit the pallet and caused it to tip over.
Defendant rested without calling any witnesses.
• 1 Defendant contends the trial court properly granted the judgment notwithstanding the verdict because plaintiff was contributorily negligent as a matter of law. The issue of contributory negligence is ordinarily a question of fact to be resolved by the jury. (Jines v. Greyhound Corp. (1965), 33 Ill.2d 83, 210 N.E.2d 562.) In Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, our supreme court enumerated the standard for determining whether negligence or contributory negligence is to be considered a matter of law. This standard, also used to determine the propriety of directed verdicts and judgments notwithstanding the verdict, is whether "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14; see Mundt v. Ragnar Benson, Inc. ...