Bosel v. Marriott Corp.

• Decision Date: 24 October 1978
• Docket Number: No. 76-1504,76-1504
• Citation: 382 N.E.2d 587,22 Ill.Dec. 267,65 Ill.App.3d 649
• Parties: , 22 Ill.Dec. 267 Chris BOSEL, Plaintiff-Appellee, v. MARRIOTT CORPORATION, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 587

382 N.E.2d 587

65 Ill.App.3d 649, 22 Ill.Dec. 267

Chris BOSEL, Plaintiff-Appellee, v. MARRIOTT CORPORATION, Defendant-Appellant.

No. 76-1504.

Appellate Court of Illinois, First District, Second Division.

Oct. 24, 1978.

Rehearing Denied Nov. 21, 1978.

French & Rogers, Chicago (Richard G. French and Timothy G. Keating, Chicago, of counsel), for defendant-appellant.

Collins & Amos and Arnold & Kadjan, Chicago (Alan O. Amos, Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendant appeals from a judgment awarding plaintiff damages for injuries sustained when a truck owned by defendant and operated by an employee of defendant collided with a vehicle operated by plaintiff. The following issues are presented for review: (1) whether the trial court erred in allowing testimony concerning certain regulations at O'Hare Airport in absence of the introduction of such regulations into evidence; (2) whether the verdict was based entirely on incompetent evidence and therefore cannot be sustained as a matter of law; (3) whether the trial court erred in denying defendant's motion for directed verdict which was based on the alleged contributory negligence of plaintiff; and (4) whether the trial court erred in denying defendant's motion for new trial which was based on alleged misconduct of plaintiff's counsel.

We affirm.

On September 25, 1971, between 8:45 and 9:45 p. m., a collision occurred on the grounds of O'Hare Airport between a truck driven by an employee of defendant, Marriott Corporation, and a service vehicle driven by plaintiff, Chris Bosel. Plaintiff brought this action to recover for injuries sustained, alleging that the driver of the truck was negligent and that plaintiff was not contributorily negligent. The following facts were adduced at trial:

Plaintiff was employed by Northwest Orient Airlines and operated a service vehicle, known as a tug, which is used for pulling equipment and baggage carts. A tug is approximately six feet long, three and one-half feet wide and stands lower than a normal automobile. A tug has no hood, horn or seatbelt, and the operator sits in the middle over the rear wheels.

Sebastian Rodriguez, who is not a party to this action, was employed by defendant as a truck driver. The truck was a two and one-half ton, over-the-road vehicle used to transport food from defendant's kitchen to aircraft at O'Hare Airport.

The collision occurred on the grounds of O'Hare Airport, in an area known as the open aircraft ramp, between concourses C and D. The distance between the concourses is 750 feet, and there is a painted line down the center of the ramp area, which is an aircraft taxi line. Aircraft would taxi down this line and then turn and park at either concourse building. Each concourse has a yellow line down the length of the concourse, marking the ends of the parked aircraft. There are lights on the concourse buildings, but the light toward the center area is greatly diminished. There is a service road which encircles the concourse buildings, and there is an entrance into the concourse area at each concourse building.

Sebastian Rodriguez testified that on September 25, 1971, he was driving a Marriott truck, making a delivery at gate C-2 on the C concourse. After entering the airport, he drove on the service road and then entered the concourse area at concourse D. He then drove down the middle of the ramp area, along the aircraft taxi line and turned left at gate C-2. Rodriguez testified that after making the delivery, he drove back to the taxi line and was driving west down the middle of the ramp area when the collision occurred. Rodriguez stated that he was travelling at about 10 or 12 miles per hour, that the truck lights were on, and that he did not see the tug before the front part of the truck came in contact with the right side of the tug. He stated that defendant gave him instructions as to how to drive at O'Hare Field, but stated that he did not know whether one of the regulations stated that catering trucks are not to cross the open aircraft ramp between the concourse buildings. Rodriguez stated that he always entered the concourse area at the D concourse.

Plaintiff testified that he was at gate D-8 and he was driving the tug to a storage area at the end of the C concourse. Plaintiff stated that he approached the yellow line, marking the end of the D concourse, looked both ways and saw no vehicles coming down the line. He then continued forward across the yellow line toward the C concourse, and he was two-thirds of the way to the middle aircraft taxi line when the collision occurred. Plaintiff stated that the accident did not occur in the middle and that the truck was travelling in a southwest direction, diagonally across the open area toward the entrance to the service road at the D concourse. Plaintiff testified that tugs are permitted to cross the ramp area, that there is no rule or regulation prohibiting tugs from going across the area, but the catering trucks were not permitted to go across the ramp area or to go down the middle of the ramp along the taxi line. Plaintiff stated that he did not expect any vehicles to be travelling in the middle area past the yellow line. Plaintiff was travelling at 10 miles per hour, which was as fast as the tug could travel; he first saw the truck when it was 30 feet away and at that time he could not accelerate to get out of the way or get the truck's attention because the tug has no horn.

Tommy Immesote testified that in September 1971 he worked for defendant and drove a catering truck which serviced the airport. At the time of the trial, Immesote was employed as a transportation agent for Northwest Orient Airlines. Immesote testified that while working for defendant, he was instructed as to the rules and regulations for safety on airport premises. Immesote was instructed to remain on designated roadways and to never cross the open aircraft ramp between the concourses. Immesote stated that the yellow line marking the end of the parked aircraft was a designated roadway, and that the middle aircraft taxi line was not a designated roadway. He stated further that he worked at the C concourse and was required to enter off the service road at the C concourse, but that he would enter from the D concourse and cut across the ramp area to save time.

On September 25, 1971, Immesote was working with Eddie Reyes. They were at the end of the C concourse waiting to service an aircraft when the collision occurred. Immesote did not observe the accident. Reyes testified that he observed defendant's truck going down the middle of the ramp area and saw the tug flash into the truck lights just before the impact. Reyes stated that the tug had no lights on, and that the truck was going about 15 miles per hour. Reyes testified that he was never instructed not to cross the ramp area, that when driving to C concourse he always followed the same route, which was to enter the concourse area at the D concourse and then to cut across the ramp area to the C concourse. Reyes had been employed by defendant for 13 years, had worked at O'Hare Airport for eight years and at the time of trial was working for defendant in Puerto Rico.

Phillip Gussard testified that he had been employed by Northwest Orient Airlines for 19 years as a service manager. He was familiar with the operations on the ramp between the C and D concourses and was responsible for service employees. Gussard stated that the yellow lines were not traffic lines but were property lines showing the space leased from the city of Chicago, and that catering trucks should not travel down the aircraft taxi line. He did not know whether it was customary for catering trucks to cross the ramp area. Gussard stated that the tug involved was called a B5 tug, and that the tug lights would operate even if the engine was not running. Plaintiff testified on direct and in rebuttal that the tug was an old model B5 whose lights would operate only if the engine was running.

Plaintiff testified that prior to the accident his physical condition was good. Upon impact, he was thrown from the tug and landed on the concrete. He had pains in his left shoulders, left side of his chest and in both hips. He spent two weeks in the hospital and was off work for six weeks. When he returned to work, he could not work at his previous position as a baggage handler but had to do less strenuous work due to pains in his shoulder and hips. Dr. Robert Busch testified that he examined plaintiff on two occasions, once in April 1973 and once immediately prior to trial. His examination revealed a loss of tissue in the right hip and impaired mobility of the hip and left arm and side. X-rays showed a fracture of the rib and a separation of the left shoulder. Dr. Busch believed the condition to be permanent and to require continuous medical care. Plaintiff testified that at the time of the accident he had been making $4.98 an hour, was working a 40 hour week plus approximately four hours in overtime.

The jury returned a verdict for plaintiff in the amount of $30,000 and responded in the negative to a special interrogatory as to whether plaintiff was contributorily negligent. The court entered judgment for plaintiff. Defendant's motions for judgment notwithstanding the verdict and the special interrogatory and for a new trial were denied.

I

Defendant initially contends that the trial court erred in allowing testimony as to the regulations at O'Hare Airport in absence of the formal introduction of such regulations by plaintiff's counsel. Defendant also contends that such testimony was inadmissible as hearsay, opinion evidence, and in violation of the best evidence rule. Plaintiff contends that defendant waived these arguments for purposes of appeal because defendant did not object to the testimony on the grounds raised on appeal, did not file a motion to strike such testimony and did not raise these arguments...