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Wood v. Mobil Chemical Co.

OPINION FILED JULY 8, 1977.

JOSEPH H. WOOD ET AL., PLAINTIFFS-APPELLEES,

v.

MOBIL CHEMICAL COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. J.F. CUNNINGHAM, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

This action was brought in the circuit court of St. Clair County by plaintiffs, Joseph and Ercelia Wood, against defendants, Mobil Chemical Company (hereafter Mobil), Towmotor Corporation (hereafter Towmotor) and DeWalt Fry, to recover damages for the claimed exposure of Joseph Wood to carbon monoxide from which he allegedly suffered brain damage. A third-party complaint by Mobil and Towmotor against B.N. Transport, Inc., and the plaintiffs' complaint against DeWalt Fry were dismissed by the trial court. Following a jury trial, verdicts were returned for Towmotor and against plaintiffs and for plaintiffs and against Mobil. The jury assessed damages at $525,000 for Joseph Wood and $75,000 for his wife. The trial court entered judgment on the verdict from which Mobil now brings this appeal.

On appeal, Mobil contends that the trial court erred in denying its motions for a directed verdict and for a judgment n.o.v.; that the trial court committed certain trial errors and erred in giving certain instructions; and that the damages assessed by the jury were excessive.

The evidence at trial showed that on October 18, 1971, Joseph Wood, who was then 41 years old, worked as a truck driver and loader for B.N. Transport, Inc. On that date Wood was sent with a tractor-trailer to pick up a truck load of Hefty Bags, a product produced by Mobil at its Jacksonville facility. The trailer was a 40-foot trailer which was open at the end. The tractor-trailer was driven to Mobil's Building 11, a large storage building which had truck loading doors. These doors were designed in such a manner that a trailer may be backed directly against the building so that the interior of the trailer may become annexed to the interior of the building. Rubber cushions around the border of the loading doors served as a gasket between a trailer and the building to seal out cold weather. Wood's trailer was centered and backed tightly against the building opening. A bridgeplate was then laid down, to serve as a ramp between the building and the trailer. The tractor was then detached from the trailer and a co-worker of Wood drove the tractor away leaving Wood to load the trailer.

Wood loaded the trailer with the assistance of Mobil's fork lift driver DeWalt Fry. Fry drove skids loaded with Hefty Bag boxes directly into Wood's trailer with the fork lift. Fry placed each skid near Wood, who then stacked each box onto the trailer. Next to Wood's trailer, was another trailer in which Wayne Bunfield was stacking boxes in the same manner as Wood. Fry would alternately bring a pallet of boxes to Wood's trailer and then to Bunfield's trailer. When Fry would bring a load into either trailer, he entered front first and after placing the skid, he would back out. The fork lift was in Wood's trailer no more than 20 seconds with each load.

The fork lift which Fry operated on that day was powered by a four-cylinder, internal combustion, gasoline engine. Mobil's fork lift drivers preferred its electric fork lifts because they were newer and did not produce exhaust fumes; however, the electric fork lift Fry attempted to use that day was inoperative. The fork lift that was used emitted exhaust fumes containing carbon monoxide from its rear. This was the only source of carbon monoxide in or around Wood's trailer. There was testimony that the percentage of carbon monoxide in exhaust fumes can substantially increase if a gasoline engine is not properly maintained. Despite Mobil's schedule which required weekly maintenance of their fork lifts due to their heavy usage, the fork lift Fry used had not been serviced for two months prior to the day of the incident.

Approximately one half hour after the loading began, Fry saw Wood fall in the trailer. By then, the fork lift had entered the trailer about 10 to 20 times and the trailer was one-fourth to one-third loaded. Fry went to Wood and found him lying unconscious on the trailer floor. Others came to Wood's aid, including Marilyn Riggs, a nurse at Mobil, and an ambulance was called. Cornelius Sparrow, a truck driver with B.N. Transport, testified that when he saw Wood lying unconscious in the trailer, Wood's color appeared "normal" and Sparrow did not notice any unusual accumulation of exhaust fumes in the area. Nurse Riggs did not testify. After Wood had fainted, he remained in the trailer for 20 to 45 minutes until he was taken away by the ambulance.

Wood was taken to a hospital where he was examined by Dr. Auner. Auner described Wood as slightly stuporous and found Wood's face to be both flushed and cynotic. After taking a history of the patient, Auner diagnosed Wood as suffering from carbon monoxide intoxication and he ordered that the oxygen that was being administered to Wood be continued. At trial, Auner affirmed the correctness of the diagnosis and stated that in his opinion Wood had suffered carbon monoxide intoxication. He further stated that at the time of the incident he did not give Wood a blood test to verify the diagnosis since "the condition was apparent" and Wood was "improving rapidly."

On the day following the incident, October 19, Wood was discharged from the hospital by Dr. Auner. On October 25, Wood returned to work. While there, Wood witnessed a minor accident with which he was not involved but which "pretty well shook up" him and made him feel unable to "safely drive without seeing a doctor."

Wood first visited Dr. Auner who found Wood appearing "extremely nervous." Auner was unable to say whether this condition was causally related to the carbon monoxide intoxication. Wood then visited his own family physician, Dr. Hyk. Hyk testified by deposition that Wood appeared tired, nervous and very irritable. Physical examination showed Wood's vital signs to be normal. Based on the history and character of the symptoms, Hyk determined that the carbon monoxide intoxication had affected Wood's nerve and brain cells. Hyk then prescribed a drug treatment to attempt to improve the condition. Thereafter, when he found the condition unimproved, Hyk consulted with a neurologist and eventually he sent Wood to a psychiatrist, Dr. Zilinskas.

Zilinskas testified that he ordered that Wood be admitted to a hospital for a full battery of physical, neurological and psychiatric examinations. These showed that Wood was suffering from extreme nervousness, anxiety and depression. He was also found to have poor concentration and attention span, inability to do simple mental tasks, poor abstract thinking, and difficulty in expression and simple daily functioning. Zilinskas' diagnosis of the condition was non-psychotic, organic brain syndrome in which the brain damage was slight but permanent. Etiologically, Zilinskas determined that the condition was caused by Wood's carbon monoxide exposure and he stated that he "could find no other cause." Zilinskas stated that Wood had responded well to treatment and that he was less depressed and less anxious. In his opinion Wood would be able to hold a simple menial job if trained to do so but that Wood will not be able to drive a truck again.

Ercelia Wood testified that her husband's personality "completely" changed since the date of the incident. They no longer had a husband-wife relationship and he became "more like one of the kids." Her husband no longer shared in decision-making, nor in the discipline of their three children. Although he had built their house, since the date of the incident he could no longer repair things around the home. Moreover, she described him as "not interested" in things around the home, as having a poor memory and as sometimes being "scared" or depressed, all of which were in contrast to his nature before October 18, 1971.

Dr. Bornstein, a psychiatrist testifying on behalf of Mobil, stated that his examination of Wood showed him to be cooperative, logical, somewhat depressed but not anxious or confused, and having a normal attention span and a good memory. Bornstein stated that in his opinion there was no evidence of any organic brain damage and no indication of aphasia. Bornstein described Wood as having a depressive neurosis of uncertain cause. He also stated that Wood's low sex drive may have been partially due to a medication Wood was taking. Kenneth Imhoff, a psychologist testifying for Mobil, stated that tests he administered to Wood showed no organic brain impairment, an average intelligence, but that there was some anxiety and neurotic or characterological traits.

In rebuttal, Uldine Beck, a psychologist, testified that a certain aphasia test she administered to Wood showed a visual-motor organicity.

On appeal the first issue raised by Mobil is whether the trial court erred in denying Mobil's motion for a directed verdict and its later motion for judgment notwithstanding the jury's verdict. In its analysis of the heretofore related facts, Mobil contends that the trial court so erred due to the "complete absence" of any evidence of the presence of sufficient carbon monoxide to have caused any injury to Wood.

• 1 In the oft-cited case of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, the court held that in jury trials:

"In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which 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.)

Viewing the evidence thusly we find ample evidence of the presence of carbon monoxide sufficient to ...


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