APPELLATE COURT OF ILLINOIS, THIRD DISTRICT
529 N.E.2d 303, 174 Ill. App. 3d 972, 124 Ill. Dec. 483 1988.IL.1495
Appeal from the Circuit Court of Peoria County; the Hon. Joe B. McDade and the Hon. Stephen Covey, Judges, presiding.
JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT
This case comes on appeal pursuant to appellant's petition for leave to appeal under authority of Supreme Court Rule 306 (107 Ill. 2d R. 306) from a post-trial order of the circuit court of Peoria County granting appellant's alternative request for a new trial. We allowed appellant's petition.
Plaintiff-appellant, Steve Collins (plaintiff or Collins), was employed as a general laborer by third-party defendant-appellee, Feeney Oil Company (Feeney), in Normal, Illinois, and had, at the time of the incident complained of, been so employed for roughly five weeks. On October 18, 1979, plaintiff was operating a forklift belonging to Feeney when the forklift fell on its side and pinned him partially underneath. Plaintiff lost consciousness at the time of the accident, and upon regaining it, was unable to remember anything that happened during the preceding four days, including any details of the accident itself; he has not since regained his memory and there were no other witnesses to the accident.
The forklift in question was designed and manufactured by defendant and third-party plaintiff-appellee Hyster Company (Hyster) between 1958 and 1960 as Model H-25-E. It was originally sold by Hyster in 1963 to Monticello Cob Company, which in turn sold it to Feeney in 1977. While owned by Monticello Cob Company, the forklift was fitted with an overhead guard and a propane gas tank as contemplated by the Hyster owner's manual for that model. Feeney made no additional changes. At no time was the forklift equipped with seat belts prior to or on October 18, 1979, and likewise had no warnings attached to it. Feeney did not receive an owner's manual when the forklift was purchased from Monticello Cob Company; however, a manual was available from any Hyster dealer.
The Feeney parking lot accommodates heavy truck traffic, which causes the development of shallow indentations or depressions in the compacted gravel surface. Plaintiff testified that these indentations were present in the parking lot area during the entire five weeks he had worked for Feeney.
At the time of his employment by Feeney, plaintiff had not previously operated a forklift. Prior to his operation of Feeney's forklift, he was provided a 15-minute demonstration of the operation of the levers and may have been warned to be careful when driving it. Plaintiff did state, however, that he knew his visibility was impaired when driving with the forks in a raised position and had observed the way others drove the machine. He further indicated that he always drove the forklift slowly across the parking area with the forks in the lowered position.
Plaintiff filed his action in 1981 naming Hyster as the only defendant and on the theory of simple negligence. Hyster filed a third-party complaint for contribution against Feeney. The case ultimately went to trial on the following theories:
(a) negligently failed to adequately warn the user that the forklift truck should not be operated with the forklifts in the raised position;
(b) negligently failed to adequately warn the user of the hazards of operating the forklift ...