Johnston v. V. H. Flannery Bldg. Materials

• Decision Date: 04 May 1955
• Docket Number: No. 55-F-3,55-F-3
• Citation: 126 N.E.2d 510,6 Ill.App.2d 35
• Parties: William A. JOHNSTON, Plaintiff-Appellee, v. V. H. FLANNERY BUILDING MATERIALS, Inc., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 510

126 N.E.2d 510

6 Ill.App.2d 35

William A. JOHNSTON, Plaintiff-Appellee, v. V. H. FLANNERY BUILDING MATERIALS, Inc., Defendant-Appellant.

No. 55-F-3.

Appellate Court of Illinois, Fourth District.

May 4, 1955.

Oehmke, Dunham & Boman, E. St. Louis, Richard T. Carter, E. St. Louis, for appellant.

Kassly & Car, E. St. Louis, for appellee.

SCHEINEMAN, Justice.

The plaintiff, William A. Johnston, suffered injuries when a ready-mix concrete truck backed into him. He obtained a jury verdict for $25,000 against the defendant, V. H. Flannery Building Materials, Inc., the owner and operator of the truck. The defendant perfected this appeal from judgment on the verdict.

Errors assigned are that plaintiff failed to prove due care on his part, or that defendant's driver was negligent, therefore judgment should have been entered notwithstanding the verdict. In the alternative, a new trial should have been granted because the trial court admitted speculative medical testimony, and the verdict is excessive due to passion and prejudice produced by the erroneous testimony.

Plaintiff was employed on a new residential development. He was at a site where trenches and forms were in place for a poured concrete foundation, five feet deep. As soon as a footing was poured, it was his duty to stretch a wire along it, attached to the batter boards, and then to insert metal rods vertically in the fresh concrete, aligning the projecting ends with the wire. With several concrete trucks operating, it required about an hour to pour, and another half hour for plaintiff to do his work, therefore he had to act promptly after the last concrete was poured in order to place the rods before the concrete set.

The surrounding terrain was soft due to new grading and filling, but access was provided from the highway by a cindered road, which came to a dead end a short distance beyond the site involved. The nearest edge of the cindered drive was two or three feet from the batter boards, which were about three feet from the foundation. Under the conditions it was not feasible to turn the heavy truck around, it had to be backed out the way it came in.

On this occasion the driver had proceeded about a truck length beyond the site and then backed up turning the truck so that the rear end approached the trench, permitting the trough to be placed in position to pour. It required only a part of his load to complete this footing, and he then pulled away about a truck length preparatory to backing out on the cinder drive, and plaintiff immediately went to work. Apparently, the truck was not fully straightened on the roadway, for when it backed up the rear end again approached the poured footing and batter board where plaintiff was working on his knees with his back to the truck. His helper attempted to shout a warning above the noise of the truck, but plaintiff was caught and pinned under it with one leg doubled against his chest, and was dragged some distance, causing injuries hereafter described. The truck also knocked down the batter boards, the rear end of the truck being 6 feet off the road.

Whether the driver's action in this case could be declared negligent, depends in large part upon his knowledge of the probable consequences of his act. If he had no knowledge and was not chargeable with knowledge that his act involved danger to another, then he should not be held responsible for a result he could not reasonably foresee. Hays v. Place, 350 Ill.App. 504, 508, 113 N.E.2d 178. But if a reasonably prudent man would foresee that commission of an act in a certain way would likely result in injury to another, and injury occurs, such act may be declared negligence. Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 105, 197 N.E. 578.

It is in the evidence that this driver had been warned to avoid hitting the batter boards, and that he was fully aware of the fact that men would proceed to work on the fresh concrete as soon as pouring was complete. He testified that he leaned out of the left door to look, but he could not see the men because the truck was 'cater-corner' with the back end farther around than the front. Thus he knew that he was not straight on the road, but had a diagonal position, with the rear end toward the construction site where men were working. Yet he did not pull up to a straight position, nor did he stop or get out and look. He continued to back up with the rear end some six feet off the drive, knocking over the batter boards and dragging the plaintiff some 8 or 10 feet before he saw the helper's signal to stop.

In view of his admitted knowledge of conditions and his awareness of the direction his truck was taking, it was a question for the jury whether his persistence in backing up without further precaution was negligence. It...