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Zelinski v. Security Lumber Co.





Appeal from the Circuit Court of Will County; the Hon. Edward D. Smith, Judge, presiding.


The plaintiffs, George J. Zelinski and Michael Peters, appeal following a jury verdict for the defendants, Security Lumber Company and David Billadeau, at the conclusion of plaintiffs' suit for personal injuries in the circuit court of Will County. Country Village Homes, a third-party defendant and plaintiffs' employer, was dismissed on a directed verdict.

Plaintiffs present several issues for review, among which are (1) whether the defendant Billadeau was guilty of negligence as a matter of law; (2) whether the verdict of the jury was against the manifest weight of the evidence; (3) whether the trial court ruled correctly on certain objections to evidence; (4) whether the plaintiffs were denied the right to a fair trial by the introduction of certain evidence; (5) whether the cumulative effect of certain alleged errors committed during the course of trial was so prejudicial as to deny the plaintiffs a fair trial.

On April 20, 1981, plaintiffs were injured in an accident which occurred at Wilmington High School in Wilmington. Plaintiff Zelinski, age 46, was president of Country Village Homes, Inc., a general contracting firm specializing in remodeling homes and performing general construction and commercial work. As president of the company, Zelinski also undertook general carpentry work, supervisory work, overseeing of the project as well as performing general labor. He was and continues to be a 50/50 partner with his son in a business known as Wilmington Carpet Warehouse.

The plaintiff Michael Peters, age 25, was an employee of Country Village Homes, Inc., and working on the site performing general labor.

The defendant David Billadeau was employed by the defendant Security Lumber Company of Kankakee as a driver and warehouseman, a position he had held for approximately 12 years.

On the day of the incident, Security Lumber was to deliver certain hollow metal doors, door frames and the accompanying hardware to the construction site at Wilmington High School. Defendant Billadeau was driving a Ford one-ton custom 350 truck with a stam gooseneck trailer. The overall length of the truck and trailer was approximately 43 feet.

After loading the foregoing materials on the truck, Billadeau drove to Zelinski's office, which was about 2 1/2 blocks from Wilmington High School. After a brief meeting, Billadeau continued on to the high school, while Zelinski arrived at the jobsite in a separate vehicle. When Zelinski arrived at the school, he examined the delivery tickets and took out a set of shop drawings to find out where the doors and frames were to go. The parties met at the back of the school where deliveries were usually made. As the back door was too small for the door frames being delivered, Zelinski instructed Billadeau to drive around to the front of the building, which he did. Zelinski walked through the building and arranged for Michael Peters to help with unloading the truck.

According to Zelinski, Billadeau suggested that he back the trailer over a 7-inch curbing to the overhead doors, a distance of approximately 37 feet. Billadeau denied that he wanted to back the truck over the curb, since the total length of the truck and trailer exceeded the distance from the curb to the door by approximately 7 feet and the truck would be left hanging over the curb. Billadeau testified that the idea of going over the curb was entirely Zelinski's. Peters said he heard Zelinski tell Billadeau to drive over the curbing and did not hear Billadeau object to the instructions. In any event, it was Zelinski who decided that the 37-foot distance from the curb to the door was too far to carry the load, and he told Billadeau where he wanted to unload the trailer.

Zelinksi told Billadeau to drive his truck forward over the curbing. Billadeau responded by saying he would "give it a try." Billadeau backed up slightly and then proceeded forward at approximately 1 to 2 miles per hour and drove the front wheels of the truck over the curb with little difficulty, since the traction came from the rear wheels. However, when the rear wheels of the truck reached the curbing, they began spinning and would go no further. Billadeau got out of his truck, leaving the rear wheels against the curb.

Zelinski said he would get a 4 x 4 (Zelinski claimed he got a 2 x 10), but in any event the board was approximately 12 feet long and it was placed against the curbing as a step-up device. Billadeau claimed he didn't think it would work because the angle of the blacktop slanted back slightly.

On this second attempt to clear the curb the rear wheels caused the board to spin out and away from the curb. Billadeau believed the board was thrown back approximately 2 to 3 feet. Zelinski was standing off to the side of the truck about 4 1/2 feet away, according to Billadeau. Zelinski claimed that he and Peters each had a foot on the board to hold it in place and admitted that despite their effort, the rear wheels of Billadeau's truck caused the board to spin out and away from the curb.

Zelinski left for a few minutes and returned with a 4 x 4 which he claimed he placed on top of the 2 x 10, and told Billadeau they would hold the board in place with their feet. Zelinski then instructed Billadeau to try it again. Billadeau claimed that he was ordered to do so over his objections, i.e., that Zelinski was running the job and that everything would be all right. Zelinski allegedly said that it was not Billadeau's worry, but his own. Billadeau claimed that he suggested taking the truck and trailer back to where he had originally parked and unload it from there but that Zelinski refused to allow him to do so.

Billadeau claimed he told Zelinski that the curbing was too high and that holding the board with his foot could result in somebody getting hurt. Billadeau indicated, however, that it was the industry custom for the driver to take orders from the general contractor.

Zelinski instructed Billadeau to "try it again." Zelinski held the boards in place with one foot on the driver's side of the vehicle while Peters held the board in place with one foot on the passenger side.

Billadeau moved forward in the first or granny gear at 2 to 3 miles per hour. When the rear wheels reached the curb they began to spin and Zelinski said, "Give it a little more gas and it should make it." Billadeau, following Zelinski's instructions, did as he was told and within a second or two he heard Zelinski yell. Billadeau put his foot on the clutch and brake, not knowing whether Zelinski wanted him to stop or not. Zelinski told Billadeau to let the truck roll back, which he did. Billadeau realized that Zelinski must have caught his foot under the 4 x 4.

The rear wheels of the truck did not at any time go over the curb. Both Zelinski and Peters were transported to a hospital, where Zelinski was treated for a broken left foot.

Dr. Edmund T. Dorner, associate professor of safety at Illinois State University, testified as an expert witness for the plaintiffs that it was not a safe practice for a person to hold lumber in place with his foot when a truck is driving over it.

Gary Butler, a building contractor and inspector, testified that it was a general custom and practice in the construction trade that the job superintendent at a construction site direct where he wants a delivery truck unloaded and that it is also his responsibility to provide proper ramps or step-ups if he directs a delivery truck to cross a curb. According to Butler, the proper step-up to cross a 6- to 7-inch curbing was to lay down 2-inch dunnage to prevent the lumber from sliding out. Butler further agreed with plaintiffs' safety expert that it was dangerous for any worker to try to hold lumber being used as a step-up device by using his feet.

Plaintiffs' initial contention is that the trial court erred when it failed to grant their motion for a directed verdict on the issue of liability.

• 1 Plaintiffs concede that a directed verdict is proper only when all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) When this generally recognized standard is applied to the facts of the instant case, it is ...

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