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06/03/87 Donald Johanek Et Al., v. Ringsby Truck Lines

June 3, 1987

DONALD JOHANEK ET AL., PLAINTIFFS-APPELLEES

v.

RINGSBY TRUCK LINES, INC., ET AL., DEFENDANTS-APPELLANTS



Before the accident, Johanek enjoyed such activities as dancing, fishing, camping, hunting, going to movies, and working around the house. He can no longer engage in these activities. He has not worked since the accident and has been unable to find employment. He can only stand for five minutes at a time and can only walk a few blocks at a time. While he can drive a car, he can no longer drive a truck.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

509 N.E.2d 1295, 157 Ill. App. 3d 140, 109 Ill. Dec. 283 1987.IL.745

Appeal from the Circuit Court of Cook County; the Hon. Gerald L. Sbarboro, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and WHITE, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiff Donald Johanek sought damages from defendants Ringsby Truck Lines, Inc., and Hobbs Trailers, a division of Fruehauf Corporation, for personal injuries suffered when the trailer brakes on his tractor-trailer unit failed and the vehicle crashed into a canyon wall in Utah. Johanek's wife, Ardice, sought damages for loss of consortium. A jury returned a verdict of $1,320,000 for Johanek and a verdict of $880,000 for Ardice. The jury found Ringsby 22% negligent and Fruehauf 78% negligent and reduced the awards by 10% for negligence attributable to Johanek. Judgment was entered on the verdicts, and Fruehauf appeals. Ringsby is not a party to the appeal.

On appeal, Fruehauf contends that the trial court erred in not granting its motion for judgment notwithstanding the verdict for Johanek; that both verdicts were unsupported by the evidence; that the damages awarded Johanek were against the manifest weight of the evidence; that Johanek's negligence was the sole proximate cause of the accident and a new trial on the issue of comparative fault is required; and that numerous reversible errors occurred which denied Fruehauf a fair trial on all issues. Fruehauf also attacks the loss of consortium award, contending that the trial court should have entered a judgment notwithstanding the verdict or a directed verdict; that no reasonable basis for computation of the consortium award existed; that the award was against the manifest weight of the evidence; that the award was the result of a misstatement of the law by plaintiffs' counsel during closing argument; and that the award was grossly excessive, thus entitling Fruehauf to either a new trial on this issue or a substantial remittitur of the consortium award.

On October 28, 1979, Johanek, an interstate truck driver, was driving through Utah hauling a trailer for Ringsby. Hobbs had recently serviced the trailer brake system for Ringsby. The trailer brakes allegedly failed and Johanek lost steering control, crashing into the side of a canyon wall. Johanek suffered multiple injuries, including the amputation of his right leg.

On October 18, 1979, Johanek picked up a 45-foot Ringsby trailer weighing 9,000 pounds in Kansas City, Kansas, with directions from Ringsby to proceed to Des Moines, Iowa, pick up a load of tires, deliver it to Los Angeles, and bring a return load to Michigan. Shortly after leaving Kansas City, Johanek noticed a little smoke coming from the two left wheels of the trailer. He also noticed that the trailer was "holding back" on him and that the "brakes weren't very good."

Johanek advised Ringsby of the trailer brake problem. The dispatcher told him to stop at a Fruehauf brake facility in Des Moines after picking up the load. The smoking stopped before Johanek reached Des Moines. The Fruehauf dealer in Des Moines was closed, and Johanek was told by the dispatcher to proceed to a dealer in Omaha, Nebraska. The dealer was also closed. The brakes were still holding back. Johanek went to a truck stop in Omaha, but the employees did not know how to repair the trailer's self-adjusting brakes.

Johanek stopped at a Tomahawk Truck Stop near Denver on Saturday, October 20, 1979. He told the Tomahawk mechanic that there was insufficient braking power on the trailer. After several hours, the mechanic advised Johanek that a relay valve on the trailer brake system had been cleaned, but that a new relay valve was needed. The mechanic also told Johanek that one or more of the wheels were not locking up properly, but that they would be probably locked up by the time he arrived at the mountains. Johanek arrived in Los Angeles on October 22 and remained there for three days. He delivered the tires and picked up a 45,542-pound load of cosmetic products. Johanek drove to Las Vegas, where he stayed for one day.

On Sunday, October 28, Johanek drove on flat roads until he reached a 25-mile stretch of two-lane mountainous highway in Utah. On the seven-mile upgrade, Johanek used third gear and travelled at 15 to 18 miles per hour. At the crest of the hill, a sign recommended a speed of 35 miles per hour on the downgrade. The 2 1/2 mile downgrade had numerous curves, with two sharp "S" turns at the bottom of the hill. Johanek shifted into fourth gear and drove at 20 to 26 miles per hour. About one mile down, he shifted into fifth gear, which has a range of 26 to 32 miles per hour. Johanek initially was accelerating as he went down the hill.

At this point, Johanek tested the hand valve which controlled the trailer brakes, but not the tractor brakes. Originally Johanek set the hand valve for five to seven pounds of air to check his braking power and control his speed. He felt little brake response and increased the setting to 10 pounds, then to 15 pounds, and finally he opened the valve completely to 120 pounds of air. He felt no more braking force than he had felt using six pounds of air. Johanek began pumping the brake pedal in the tractor, which simultaneously controlled both the tractor and the trailer brakes. The trailer was starting to override the tractor. He touched the brake pedal lightly, which slowed him down momentarily. He did not attempt to downshift.

Johanek drove through the first "S" curve at a speed of about 35 miles per hour, crossing the center line. He continued pumping his tractor brakes, and finally floored the tractor brake. He had not done this previously because of the danger of a jackknife. He turned the steering wheel to the right in an attempt to negotiate the second "S" curve, but had no response. The truck then crashed into the canyon wall on the left side of the road.

Johanek testified that during the entire cross-country trip he never used the trailer brakes alone to completely stop the truck, except once when he entered Utah. Otherwise, he only used the trailer brakes alone momentarily to control speed and test his braking power. He would generally use six pounds of air. Johanek stated that it was a bad practice to use only the trailer brakes for completely stopping the unit.

Wayne C. Harris, Ringsby's director of safety, testified for plaintiffs regarding the history of the trailer Johanek was hauling at the time of the accident. Ringsby had owned the trailer since 1973, and used it until 1976, when Ringsby's drivers went on strike. The trailer was stored in an open lot in Wyoming until the strike ended in 1979. The service records for the trailer were lost or destroyed, and thus the number of miles the trailer had traveled in its three years of use, or when the brakes were serviced during those three years, was not known.

In October 1979, the trailer was taken to Colorado for servicing at the Hobbs Trailers garage. Records reveal that Ringsby asked Hobbs to "check and repair the complete brake system." The trailer left the Hobbs garage on October 8, 1979. A driver took it to St. Louis carrying a load of tea. It is unknown how the trailer arrived in Kansas City, where Johanek picked it up.

James Cummings, an engineer for Rockwell Company, testified for plaintiffs regarding the manner in which the Rockwell brakes function. Johanek drove a 15,000-pound tractor which was 18 months old. The brake system consisted of a brake pedal which controlled both the trailer and tractor brakes; a hand valve which controlled the trailer brakes separately; and a 13-speed transmission, one gear for reverse and 12 gears for going forward. The trailer brakes could be used alone to bypass the tractor brakes. It would not be proper to completely stop a truck by using the hand valve, which only turns the brakes on the trailer. The foot pedal, which coordinates the tractor and trailer brakes, should be used.

Each Rockwell trailer brake consists of a brake drum, two brake shoes and two actuator mechanisms. Each actuator mechanism consists of a wedge, roller assemblies and two plungers. When the brake is applied, the wedge pushes forward in the actuator mechanism and causes the brake shoes to expand outwardly into the drum. This creates a force between the brake lining and the drum and that friction stops the vehicle. As the linings wear down, a self-adjusting mechanism compensates for the wear. The inside of the trailer wheels have metal dust covers with two peepholes for observing the ...


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