APPEAL from the Circuit Court of Madison County; the Hon.
HAROLD R. CLARK, Judge, presiding.
MR. PRESIDING JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:
Third-party defendant-appellant Curry and Marchman Well Servicing Company (hereinafter "Curry") appeals from a judgment entered against it in the amount of $90,000 in favor of third-party plaintiff-appellee Gulf Oil Corporation (hereinafter "Gulf").
In August of 1968, Fountain Crum was employed by Curry in its well-servicing operation. Pursuant to a contract with Gulf, Curry was to remove the tubing and pipe from an oil well known as Smail No. 7 leased by Gulf and located near St. Elmo, Illinois. Curry was initially contacted by John Crown, a "pumper" employee by Gulf. Crown instructed the Curry crew which consisted of Fountain Crum, the "tail-out Boy," Clifford Myers, the "operator," and William Deal, the "rod-wrencher," where to lay the tubing and pipes so that the equipment could be used in another well operation. Crown, who was responsible for inspecting Smail No. 7, then left the well site. Fountain Crum was injured when he tripped while walking backwards guiding a piece of the well equipment known as the "horse's head" which was suspended from a cable. He tripped over a flow line that was above the ground but difficult to observe because grass and weeds had grown around it.
Crum brought an action against both Gulf and Crown in the circuit court of Madison County alleging that they were negligent in one or more of the following ways:
"(a) Failed to provide adequate or any warning to persons, including the Plaintiff, of the location of said flow line on said premises.
(b) Carelessly and negligently failed to post adequate or any signs informing persons, including the Plaintiff, of the presence of the flow line above ground.
(c) Failed to install said flow line beneath the ground so as not to interfere with persons working in and about said flow line.
(d) Failed to remove the high grass covering said flow line which was placed above ground.
(e) Otherwise negligently and carelessly placed, installed and maintained said flow line."
Gulf filed an answer and brought a third-party action against Curry based upon an indemnification contract (count I) and upon an active/passive negligence theory (count II).
The jury returned a verdict in favor of Crum in the amount of $175,000 against Gulf. In addition, the jury found in favor of defendant Crown over plaintiff Crum. It also found in favor of Curry over Gulf. It answered yes to the following special interrogatory:
"Was the Gulf Oil Corporation actively negligent, which active negligence was a proximate cause of Fountain Crum's injury, if any?"
Gulf appealed from the verdict Crum recovered against it and from the judgment in favor of Curry. While the appeal was pending, Gulf settled the Crum judgment so the merits of the Crum case against Gulf were not considered by the appellate court. However, the appellate court reversed the judgment in favor of Curry for errors not relevant to the issues in this case. Crum v. Gulf Oil Corp. (1973), 12 Ill. App.3d 988, 299 N.E.2d 820.
After another trial between Crum and Curry resulted in a "hung" jury, count II of the third-party complaint was presented to the court without a jury, both parties stipulating that the court could consider the transcripts of the first and second trials as evidence. On September 2, 1977, the court entered judgment in favor of Gulf in the sum of $90,000 plus attorney fees.
Curry contends that the trial court erred in finding that it was actively negligent and that Gulf was passively negligent and thereby entitled to indemnity from Curry. Curry also appeals the trial court's award of attorney ...