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Sears v. Kois Bros. Equipment





Appeal from the Circuit Court of Cook County; the Hon. Allen A. Freeman, Judge, presiding.


The plaintiff, Meline A. Sears, brought this action against Kois Brothers Equipment, Inc. (Kois Bros.) and Melvin Dirksen to recover damages for the wrongful death of her husband, Earl Sears, Sr., who was killed when his automobile collided with two dump bodies which had fallen on the Illinois Tollway from a Kois Bros. truck driven by Dirksen. The defendants filed a third-party complaint for indemnity against Garwood Industries, Inc. (Garwood), which had loaded the dump bodies on the truck, against Orr Construction Company and/or International Bridge Construction Company (Orr), which were engaged in road repair activities near the scene of the accident, and against the Illinois Toll Authority (Tollway).

Kois Bros. and Dirksen reached a settlement with the plaintiff after the cause was assigned for trial but before the jury was selected. This matter then proceeded to trial in the circuit court of Cook County on the third-party complaint for indemnity. The jury returned a verdict in favor of Kois Bros. and Dirksen and against the third-party defendants. The trial court entered judgment on the verdict. Post-trial motions filed by the third-party defendants for judgment notwithstanding the verdict or a new trial were denied, and the third-party defendants appeal.

On appeal, the third-party defendants contend that (1) Kois Bros. and Dirksen were guilty of active negligence as a matter of law; (2) neither the conduct of Orr nor the conduct of the Tollway was the proximate cause of Sears' death; (3) that the Tollway was not actively negligent; and (4) certain rulings by the trial court on the evidence and on the jury instructions were erroneous.

Melvin Dirksen testified that on May 12, 1972, he was employed by Kois Bros. of Denver, Colorado. Dirksen was an experienced truck driver who had driven trucks of various sizes from 1955 until 1972. On May 12, 1972, Dirksen went to Garwood's facility in Wayne, Michigan, in order to pick up a Kois Bros. truck loaded with dump bodies manufactured by Garwood. Upon his arrival at approximately 8:30 p.m., a Garwood employee pointed out the 1972 Dodge truck, a cab and chassis unit, which Dirksen was to drive to Denver. Affixed to the chassis were four dump bodies, two in the front and two in the back. The two front bodies were welded together with metal straps, as were the two back bodies. The lower front body also had straps welded to it which were bolted to the frame of the truck. There were no straps bolted from the lower back body to the frame; instead, two bands were placed around the bodies and the frame of the truck.

Prior to his departure, Dirksen inspected the load to determine if the bands were secure. In his opinion, the truck was safe for travel. Furthermore, it was his position that if Garwood had loaded the truck, the load was safe.

Dirksen left Michigan that evening and entered Illinois at approximately 2 a.m. As he approached the Calumet exit on Interstate 294, Dirksen was traveling at approximately 50-55 miles per hour when he hit an extremely rough section of the road. The two rear dump bodies fell off the chassis and landed in the lane nearest the median strip. Dirksen immediately parked the truck, grabbed his flashlight, and proceeded to wave over oncoming traffic. Although Dirksen successfully alerted several drivers to the obstruction in the road, the automobile driven by the decedent hit the dump bodies.

Dirksen did not recall seeing any road construction signs or barricades prior to the rough road. He did not know if there were any flares, reflectors or warning devices on the truck.

George Kois testified that he was president of Kois Bros., a distributor and manufacturer of refuse and truck equipment. Kois Bros. distributes the Garwood product line in Colorado.

On May 12, 1972, Kois went to Garwood's facility in Wayne, Michigan, around noon with the intention of driving to Denver the truck loaded with dump bodies. Because the truck was not ready at the time, Kois decided to drive a refuse truck and left instructions for Dirksen to take the truck with the dump bodies.

Prior to his departure, Kois informed three Garwood employees that a customer of Kois Bros. had a problem with dump bodies shifting on a previous load when they had been banded to the truck. Kois recommended that Garwood load the dump bodies with a weld strap and bolt method. However, Kois did not relay this information to Dirksen.

On his drive to Denver, Kois encountered an extremely rough portion of road on the Illinois tollway just west of the Indiana border that appeared to have a very sharp drop with many potholes. This rough area was the scene of Dirksen's accident.

Several former employees of Garwood testified that the placing of two bands around the back dump bodies was an unsafe method of securing the load. For purposes of this appeal, Garwood concedes that it negligently affixed the cargo to the truck and that this negligence was a proximate cause of the accident involving the decedent.

Earl Sears, Jr., the decedent's son, testified that on May 12, 1972, he and his father were driving west on Interstate 80-94 before it became Interstate 294. Sears, Jr., was in a separate automobile behind his father's vehicle. Sears, Jr., testified that he encountered construction activity at Torrence Avenue near the Calumet Expressway. Sawhorse barricades with yellow blinking lights and a lighted arrow indicated that the construction was in progress. The barricades extended the entire distance of the construction (approximately three miles) except for exit and entrance ramps.

The accident occurred at the end of the construction area on a bridge on Interstate 294. Sears, Jr., testified that the surface of the road on the bridge area became very rough. Both he and his father reduced their speed to approximately 45-50 miles per hour. Sears, Jr., a truck driver for six years, stated that it was the custom ...

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