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11/12/87 Thomas Chizmar, A Minor, v. the City of Virden Et Al.

November 12, 1987





515 N.E.2d 1294, 162 Ill. App. 3d 653, 114 Ill. Dec. 23 1987.IL.1672

Appeal from the Circuit Court of Macoupin County; the Hon. Joseph P. Koval, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. GREEN and LUND, JJ., concur.


Thomas Chizmar (plaintiff), by his father and next friend, Thomas Chizmar, appeals the denial of his motion for new trial or judgment notwithstanding the verdict as to count V of his complaint against Louis Marsch, Inc. (Marsch), alleging violations of sections 2 and 4 of "An Act to protect workmen and the general public from injury or death during construction or repair of bridges and highways . . ." (Act) (Ill. Rev. Stat. 1977, ch. 121, pars. 314.2, 314.4) (commonly referred to as the Road Construction Injuries Act). He brought a 10-count action against the city of Virden (city), Marsch, the contractor, and Stephen Clark (Clark), the truck driver. Clark died March 15, 1982, and his estate was substituted as a defendant. Following a jury trial, a verdict was rendered in favor of Marsch and against the plaintiff as to count V, and for all the defendants and against the plaintiff on the remaining counts. Plaintiff appeals the verdict as to count V only. We affirm.

Plaintiff, seven years old at the time of the occurrence, was injured August 13, 1979, while riding his minibike near the intersection of Sunset Drive and Meadow Street in Virden. Marsch was engaged in applying liquid asphalt and crushed stone on Sunset pursuant to its resurfacing contract with the city. The job required an oil truck to spread liquid asphalt on the road. A rock spreader, loaded by a dump truck, distributed rock evenly over the sprayed area. A roller followed up to tamp the crushed rock.

Tim Snow, an employee of the Virden sanitary department working at the resurfacing operation, was the only eyewitness. He testified plaintiff had been riding a minibike in the yards and ditches along Sunset and in the street itself that morning. At about 1:45 p.m., when plaintiff rode near Snow's truck, Snow yelled at plaintiff to play elsewhere.

At the time of the occurrence, a 13-ton Marsch dump truck loaded with rock was backing up on Sunset toward the oil truck. Operated by Clark, the dump truck traveled south at two to three miles per hour. The evidence conflicts as to whether plaintiff rode south on Sunset beside the Marsch vehicle, turned right behind what he thought was a stationary truck, and was struck by a bar extending from the truck's rear, or whether he traveled south on Sunset, made a loop at the intersection to proceed west on Meadow and fell under the truck after his bike slid. It is undisputed plaintiff fell and the truck backed up over him. He rolled lengthwise under the truck in a northerly direction. As he raised his left foot to push himself out from under the truck, his right foot was run over by the right rear inside dual wheel. Plaintiff's right foot and leg were subsequently amputated approximately a third of the way between the ankle and the knee.

Paul Vocks, Marsch's president, testified as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1102). He stated no flagmen, warning lights, or barricades were used by Marsch on the date of the accident. The truck had no audible backup warnings.

John Lewis, a city employee on the site at the time of the accident, testified that in the six years Marsch had performed street repair for the city, the company had never used barricades or flagmen. He stated neither was necessary because the job was moving.

Plaintiff claims failure to use warning devices around the resurfacing operation violated the Act and proximately caused the plaintiff's injuries. Defendant maintains the jury's verdict in its favor was not against the manifest weight of the evidence.

On a motion for a new trial, the court will weigh evidence, set aside the verdict, and order a new trial if the verdict is contrary to the manifest weight of the evidence. (West v. City of Hoopeston (1986), 146 Ill. App. 3d 538, 497 N.E.2d 170.) A verdict is against the manifest weight of the evidence when an opposite Conclusion is clearly evident. (Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208, 450 N.E.2d 363.) In determining whether a jury's verdict was against the manifest weight of the evidence, the inquiry on appeal is whether the result reached is reasonable on ...

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