Connolly v. Melroy

• Decision Date: 14 August 1978
• Docket Number: No. 77-882,77-882
• Citation: 380 N.E.2d 863,63 Ill.App.3d 850,20 Ill.Dec. 654
• Parties: , 20 Ill.Dec. 654 Timothy CONNOLLY, Plaintiff-Appellee-Cross-Appellant, v. Mary D. MELROY, Defendant-Appellant, and Shell Oil Company, Defendant-Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 863

380 N.E.2d 863

63 Ill.App.3d 850, 20 Ill.Dec. 654

Timothy CONNOLLY, Plaintiff-Appellee-Cross-Appellant, v. Mary D. MELROY, Defendant-Appellant and Shell Oil Company, Defendant-Cross-Appellee.

No. 77-882.

Appellate Court of Illinois, First District, First Division.

Aug. 14, 1978.

Kralovec, Sweeney, Marquard & Doyle, Chicago (George E. Sweeney, Edward V. Scoby, Chicago, of counsel), for defendant-appellant.

Maddux, Johnson & Cusack, Ltd., Chicago (Thomas H. Fegan, Jr., Chicago, of counsel), for defendant-cross-appellee.

Defrees & Fiske, Chicago (Edward J. Griffin, Gary Schuman, Chicago, of counsel), for plaintiff-appellee-cross-appellant.

BUCKLEY, Justice.

This appeal concerns an accident in which a worker, Timothy Connolly, while working in a service station belonging to Shell Oil Co., was struck by an automobile driven by Mary D. Melroy. At trial, in the Circuit Court of Cook County, Connolly's cause of action against Melroy for negligence was sent to the jury, but there was a directed verdict of dismissal as to his action against Shell. The jury found Melroy liable for negligence in the accident and awarded $60,000 in damages to Connolly. On appeal, Melroy argues that the verdict against her cannot stand because Connolly was guilty of contributory negligence as a matter of law and because at trial it was reversible error for the court to instruct the jury on the issue of unreasonable and improper speed when there was no evidence presented on this issue. Connolly appeals from the directed verdict dismissing his cause of action against Shell.

For the reasons stated below, we find none of these contentions meritorious.

The incident giving rise to this action occurred on February 21, 1972, at a gasoline service station known as the Southland Shell Station, located at the northwest corner of Algonquin and Wilke Roads in Rolling Meadows, Illinois. That intersection is a "T" intersection, with Wilke Road coming from the north and ending at Algonquin Road, which runs east and west. The service station has three islands of pumps, two to the south of the station building, parallel to Algonquin, and one to the east, parallel to Wilke. There are two driveways along each side.

Plaintiff Connolly was employed by Garco Construction Co., which by agreement performed a variety of maintenance and construction tasks at Shell stations in the area. Connolly had been sent to clear frozen debris from a pump set beneath the surface of the service station pavement in an 18-inch deep hole covered by a metal plate. The hole is located somewhat northeast of the east driveway on the Algonquin Road side of the station.

On the day in question, Connolly arrived at the station in a Garco truck and parked it northeast of the pumps along the Wilke Road side of the station so that it blocked entry to the east side of those pumps. While working at the hole, Connolly faced south, and assumed a variety of positions from kneeling to prone.

While Connolly was working, Melroy drove into the station from the westbound lanes of Algonquin Road, taking the east driveway, and headed toward the Wilke Road pumps, striking Connolly with her automobile.

The time of the accident was roughly 5:10 p. m. Connolly testified that he was forced to wait until late in the afternoon to work on the pump because it was only then that the debris surrounding it was thawed, and it was impossible to deal with the debris when it was frozen because chiseling or using a torch could ignite gasoline present in the hole. Connolly said Garco did not have barriers or cones for him to mark his work site. The operator of the service station testified that there were barrels around the station and that he had never forbidden their use as barriers for workmen.

Connolly also testified that he did not see Melroy's vehicle until just before impact. Melroy testified that she did not see Connolly until after the impact.

There was also testimony that, because of the difference in elevation between the station's pavement and that of Algonquin Road, the driveways on that side of the station featured an incline, and that vehicles turning into these driveways would therefore have one side higher than the other until both wheels had reached the station's level.

The first contention to be dealt with is defendant-appellant Melroy's argument that the jury verdict in the present case must be reversed because the evidence at trial showed that the plaintiff was guilty of contributory negligence as a matter of law.

Ordinarily, the issue of contributory negligence is a question of fact (Novotny v. Mott (1972), 9 Ill.App.3d 252, 254, 292 N.E.2d 87), and it becomes a matter of law "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the (plaintiff), so overwhelmingly favors the (defendant) that no contrary verdict based on that evidence could ever stand . . ." Pedrick v. Peoria & Eastern R. R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.

The character of evidence which establishes the existence of contributory negligence as a matter of law has been elaborated in the decisions of the courts of this state; relevant pronouncements on this subject include the following: that where a plaintiff has available two ways to perform a task, one tried and known to be safe, and the other unexplored or known to entail hazards, and chooses the latter course, he is contributorily negligent as a matter of law (Day v. Barber-Coleman Co. (1956), 10 Ill.App.2d 494, 511, 135 N.E.2d 231, 239); that where a plaintiff chooses for no particular reason not to use a safer method available to him and he is injured, he is guilty of contributory negligence as a matter of law (Reid v. Employers Mutual Liability Ins. Co. (1973), 14 Ill.App.3d 174, 178, 302 N.E.2d 108, 112, Aff'd, 59 Ill.2d 194, 319 N.E.2d 769); that where the plaintiff by his own act places himself in a precarious position or exposes himself to a danger that he could have avoided through the exercise of reasonable care, the plaintiff may be guilty of contributory negligence as a matter of law (Ferguson v. Southwestern Bell Telephone Co. (1972), 8 Ill.App.3d 890, 893, 290 N.E.2d 429, 432); and that where the plaintiff had a safe course to follow that a reasonably cautious person would have chosen, the law will charge him with the knowledge of it and he cannot act, except at his peril, in a place of great danger and remain oblivious to the safer alternative (Klimovich v. Crutcher (1965), 57 Ill.App.2d 444, 451, 206 N.E.2d 723, 727).

On the other hand, it is not decisive that a safer course of action was available (Fisher v. Lang (1973), 9 Ill.App.3d 696, 292 N.E.2d 915), or that the course chosen entailed certain hazards (Paul v. Carroll (1973), 16 Ill.App.3d 173, 305 N.E.2d 588). The crucial issue is whether the choice of the less safe course of action was unreasonable (Johnson v. V. H. Flannery Bldg. Materials (1955), 6 Ill.App.2d 35, 126 N.E.2d 510; Spurr v. LaSalle Construction Co. (7th Cir. 1967), 385 F.2d 322, 326), and in determining the reasonableness of the plaintiff's conduct one of the relevant factors where the plaintiff is an employee injured in the course of his work is his need to accomplish the task at hand, Carver v. Grossman (1972), 6 Ill.App.3d 265, 285 N.E.2d 468, Rev'd on other grounds, 55 Ill.2d 507, 305 N.E.2d 161.

In applying these principles to the facts of the present case, we note first that plaintiff Connolly had no choice regarding the location or time at which he performed his task. The device he sought to clean was fixed in place and it was possible to remove debris from it only in the late afternoon, when it had thawed. Likewise, he had no choice regarding his posture while performing the task, it being necessary...