Hammer v. Slive
| Decision Date | 03 October 1960 |
| Docket Number | Gen. No. 11394 |
| Citation | 169 N.E.2d 400,27 Ill.App.2d 196 |
| Parties | Henry HAMMER, Plaintiff-Appellee, v. Harry A. SLIVE and Albert Lewis, Copartners d/b/a Rockford Iron & Metal Co., and Charles Higgins, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
Johnson & McCalmont, John E. Sype, Rockford, for appellants.
Miller, Thomas, Hickey & Collins, Rockford, for appellee.
Plaintiff recovered a money judgment of $50,000 on a jury's verdict finding the defendants guilty of negligently causing the carbon monoxide poisoning of plaintiff which resulted in his permanent disability. Post-trial motions were denied and defendants appeal. To reverse this judgment, defendants contend (a) that no actionable negligence was proven, (b) that plaintiff was guilty of contributory negligence, (c) that plaintiff assumed the risk, (d) that the trial court held no conference to settle instructions, and (e) that the giving of plaintiff's instruction No. 8 on the issues was reversible error.
Plaintiff Hammer was a long time employee of a machine tool manufacturing company which over the years had sold non-ferrous scrap to the defendants, Slive and Lewis, a co-partnership engaged in the buying and selling of scrap. The defendant Higgins, an employee of the defendant co-partnership, drove their open-body, cabover engine Chevrolet truck to the shed or 'yard' of plaintiff's employers and operated the hydraulic end-gate of the truck, powered by the truck motor, for the twenty to twenty-five minutes necessary for loading the scrap. The truck was backed under a shed open on one side, enclosed on three sides and about 200 feet in length along the open side. The back of the cab was about even with the roof of the shed with the cab and engine outside the structure and the remainder of the truck inside. The roof of the shed on the open side was about twenty-five feet from the ground. The plaintiff and the defendant Slive during the operations were stationed at the back of the truck with movable scales and weighed the drums in which the scrap was contained. They were then placed on the end-gate which was lowered to scale platform level and then raised by means of the hydraulic lift to truck bed level. Other employees were in and about the truck and handling the scrap. During the entire operation the truck motor was running at idle or slightly faster speed. Other than the plaintiff, no one engaged in the operation noticed or was affected by the exhaust fumes. When loading was completed the truck drove away and the defendant Slive immediately returned to the plaintiff's desk in the shed where plaintiff was seated, his face flushed and his head on the desk. Plaintiff went to the first aid nurse, said 'It must have been carbon monoxide gas', was administered oxygen and, on telephonic advice of the company physician, was removed to the hospital. He was discharged the following day as 'assystomatic, except headaches', and dismissed to out-patient care. He remained at home for a week, was returned to the hospital for about four and one-half weeks. Tests revealed a cerebral vascular accident with permanent brain damage. The medical testimony was in substantial agreement as to the plaintiff's present condition and in equally substantial disagreement as to whether that condition was the result of natural causes or directly related to carbon monoxide poisoning.
The rules under which a trial court may direct a verdict or we may disturb a verdict on appeal, are too well known to require unnecessary repetition here. The lethal effect of excessive carbon monoxide gas is a matter of common knowledge. In the operation of the motor vehicle the defendants were under a duty to so operate it that it would not create a carbon monoxide hazard to others, with that duty circumscribed by the reasonable man rule. 'The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as possible, nor waste his anxiety on events that are barely possible.' Pollock on Torts, 8th ed. 41. We, therefore, feel, under the occurrence events and circumstances here stated, that the conduct of the plaintiff as it relates to contributory negligence, the conduct of the defendants as it relates to negligence, and the proximate cause of the plaintiff's present condition, were questions of fact properly submitted to the jury by the trial court. We are precluded from disturbing the verdict of the jury on these questions unless conclusions opposite to those reached by the jury are clearly evident. Rude v. Seibert, 22 Ill.App.2d 477, 483, 161 N.E.2d 39.
The trial court, on motion, struck the affirmative defense that the plaintiff had assumed the risk of carbon monoxide poisoning. Contrary to the defendants' assertion, this cause of action did not originate in Section 5 of the Workman's Compensation Act nor is it a master-servant relationship. The plaintiff was not in any sense of the word a servant or employee of the defendants or any of them nor under any contractual relationship with them. His only duty for his own employer was to weigh and record the weights of the scrap. While so engaged he was injured by third party tort feasors without privity of contract with them. Even assuming, without holding, that as to his own employer plaintiff assumed the danger of carbon monoxide poisoning in weighing the scrap, 'the rule that an employee engaged in a dangerous employment assumes the risk of injury which exists while the business is carried on in the usual and ordinary way does not apply when recovery is sought from a third person, whose negligence caused the injury, although exposure to such injury is one of the risks of the employment.' 17 I.L. and P. Employment § 151, p. 515. The doctrine of the assumption of risks was conceived in the law of contract whereas the parentage of contributory negligence is in the law of torts. Defendants rely heavily on the case of Wills v. Paul, 24 Ill.App.2d 417, 164 N.E.2d 631, in support of their position. That case is readily distinguishable in that there the employee sued his own employer, not third party tort feasors, in a negligence action for an injury sustained out of his performance of his employment contract. There assumption of risk was properly pleaded and proved. In a simple negligence action against third party tort feasors the doctrine of assumption of risk is a stranger wandering aimlessly and...
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DeBow v. City of East St. Louis
...believe that the failure to make a formal record of the conference deprived defendants of a fair trial (Hammer v. Slive (2d Dist.1960), 27 Ill.App.2d 196, 204, 169 N.E.2d 400, 404) where they were subsequently allowed to make a record of their objections so as to preserve them for review (A......
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Duncan v. Cannon, 1-88-3007
...Breslin v. Bates (1973), 14 Ill.App.3d 941, 303 N.E.2d 807), or where the evidence is clearly insufficient. See Hammer v. Slive (1960), 27 Ill.App.2d 196, 169 N.E.2d 400. In the case at bar, while it is arguable that the contradictory evidence presented goes to the matter of the credibility......
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