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Yakstis v. William J. Diestelhorst Co.

OPINION FILED JULY 3, 1978.

MARIETTA WILKINSON YAKSTIS, ADM'X OF THE ESTATE OF DARRELL W. WILKINSON, DECEASED, PLAINTIFF-APPELLEE,

v.

WILLIAM J. DIESTELHORST COMPANY, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Madison County; the Hon. JOHN J. GITCHOFF, Judge, presiding.

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

Rehearing denied August 3, 1978.

Defendants, William J. Diestelhorst Co., Inc., and William J. Diestelhorst, appeal from a jury verdict of $175,000 awarded against them in a wrongful death action brought by the estate of Darrell W. Wilkinson in the circuit court of Madison County.

Early on the morning of November 28, 1973, Diestelhorst called Darrell Wilkinson to ask Wilkinson to haul the company's Case 680C backhoe from Cottage Hills to Litchfield as a favor to him. Diestelhorst explained to him that the trucks Diestelhorst ordinarily used to transport the Diestelhorst Company equipment were not working and he needed the backhoe in Litchfield to repair a caved-in sewer line.

Wilkinson was independently employed as a logger. He was not in the business of hauling heavy equipment, but he did have a Miller Tilt-Top trailer suitable for hauling heavy equipment, and a truck big enough to haul both the trailer and the equipment loaded on it which he used in his own logging business. During the phone call, Wilkinson asked if there would be a backhoe operator there to load the backhoe, and was told there would be.

Wilkinson agreed to do the favor for Diestelhorst even though it might make him late for another appointment. He and a friend, Ed McCormick, then drove to the location of the backhoe. McCormick came along because he was going to ride with Wilkinson to his other appointment and help Wilkinson pick up a log skinner for his lumber business.

When they arrived at the backhoe's location, the operator had not arrived. Wilkinson tried to load the machine and could not get it on the trailer because of early morning frost and mud. The operator who was employed by the Diestelhorst Company then arrived and loaded the backhoe with the rear end of the backhoe going first on the trailer. Mounted on the rear end of this backhoe was a boom which extended up into the air above the truck top. On the front of the machine was another scoop, or bucket.

Both McCormick and the operator, Baker, testified about how the machine was loaded, and the discussion between all three men concerning the height of the boom. Baker testified that he loaded the machine rear end first according to Wilkinson's instructions, that he asked the decedent how it looked, and Wilkinson said it (the boom) looked about 12 foot high. Further, Baker testified that the decedent did not indicate to Baker that he wanted the position of the boom modified, but if he had, he (Baker) would have obeyed Wilkinson's instructions.

Baker testified further that after the discussion relating to the height of the boom,

"Well, I got down off of the seat on the tractor [backhoe] and walked the trailer back, stepped around onto the bucket on the ground, seen the front bucket wasn't sitting level on the trailer, so I started to get back on it and he [Wilkinson] said, `Oh, That's alright.', and I said, `No, I want it straight, and I got on it and straightened the bucket out flat, the front bucket'."

Then, according to Baker, he saw a chain put on the equipment to secure it, and left. At no time did anybody discuss the route Wilkinson was to take. The next time Baker saw the truck was just as it was getting onto Interstate 55. Baker was following in his car, observed that the load was riding well, and went on past the truck to Litchfield. When the truck did not appear in Litchfield within a reasonable time, Baker drove back out and saw the truck wrecked under an overpass with the cab on its roof and equipment scattered all over the highway. Darrell Wilkinson was dead, and Ed McCormick either was being transported to or was in the Litchfield Hospital.

According to Ed McCormick, the loading procedure was very different than what Baker said. McCormick agreed that Baker loaded the backhoe, and that there was a discussion about the height of the boom. McCormick testified:

Q. In any event, after you — after it [the boom] was put in that position by the operator, was there any discussion relative to the height of that boom?

A. Yeah. I even told Darrell it was too high; Darrell thought it was too high.

Q. What did the operator say, if anything?

A. The operator said it was O.K.

Q. Did the operator give you any indication as to whether or not he ...


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