Martino v. Barra

• Decision Date: 22 June 1967
• Docket Number: No. 39956,39956
• Citation: 37 Ill.2d 588,229 N.E.2d 545
• Parties: Marlene H. MARTINO, Admx., et al. v. Ned Thomas BARRA et al., Appellees. Appeal of CITIES SERVICE OIL COMPANY et al.
• Court: Illinois Supreme Court

Page 545

229 N.E.2d 545

37 Ill.2d 588

Marlene H. MARTINO, Admx., et al. v. Ned Thomas BARRA et al., Appellees Appeal of CITIES SERVICE OIL COMPANY et al.

No. 39956.

Supreme Court of Illinois.

June 22, 1967.

Rehearing Denied Sept. 27, 1967.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago (Charles M. Rush, and John M. O'Connor, Jr., Chicago, of counsel), for appellant, Cities Service Oil Co.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago (John M. Moelmann, and D. Kendall Griffith, Chicago, of counsel), for appellee, Ned Thomas Barra.

Patrick J. Muldowney, Chicago, for appellee, Mt. Vernon Tire Service Corp.

James A. Dooley, Chicago, for plaintiffs, as amici curiae supporting petition for leave to appeal.

WARD, Justice.

We allowed a petition for leave to appeal by Cities Service Oil Company from a judgment of the First District Appellate Court, which reversed in part a judgment of the circuit court of Cook County, dismissed the appeal as to certain parties, and remanded the cause. (Martino v. Barra, 67 Ill.App.2d 328, 215 N.E.2d 12). We restate here that court's history of the litigation and factual summary:

'This action was brought to recover damages for the wrongful deaths of Herbert Hazen, Jr., Josephine Hazen and Charlotte Thacker, resulting from an automobile-truck collision near Mt. Vernon, Illinois. (Marlene H. Martino was administratrix for the Hazens, and Iola Saunders was administratrix for Thacker.)

'Named as defendants were Leon B. Stilley and the Leon B. Stilley Construction Company, owners of a concrete mixer truck; Ned Thomas Barra, driver of the concrete mixer truck; Cities Service Oil Company, owner of a tractor-trailer; Anton Halmel, driver of the tractor-trailer; Mt. Vernon Tire Service Corporation; and Stanley V. Koziara, owner of the Mt. Vernon Tire Service Corporation. Defendants Halmel and Cities Service Oil Company cross-claimed against the other defendants for personal injuries to Halmel and for property damage to the Cities Service tractor-trailer. The jury returned a verdict for all the defendants and against the plaintiffs, and judgment was entered thereon. No verdict was specifically rendered on the cross-claims of Halmel and Cities Service.

'Post-trial motions were filed by the plaintiffs for judgment notwithstanding the verdict and for a new trial on the question of damages. Cross-claimants Halmel and Cities Service filed post-trial motions, Halmel, requesting a directed verdict on his cross-claim and a new trial on the question of damages, and Cities Service requesting judgment in its favor on its cross-claim in the amount of $3,000, which amount was agreed by all the parties to be the amount of damages to the tractor-trailer. Cross-defendant Mt. Vernon Tire filed a post-trial motion for judgment in its favor and against plaintiffs and cross-claimants, consistent with the jury's verdict. Cross-defendants Barra and Stilley likewise filed motions for judgment in their favor and against plaintiffs and cross-claimants.

'Plaintiffs' motion was sustained as to defendants Barra and Mt. Vernon, and a new trial on the question of damages was granted; the motion was denied as to the other defendants. Cross-claimant Halmel's motion was sustained as to Barra and Mt. Vernon, and a new trial on the question of damages was granted. Cross-claimant Cities Service's motion was sustained as to Barra and Mt. Vernon, and judgment entered in the amount of $3,000. It is from these judgments that Ned Thomas Barra and Mt. Vernon Tire Service Corporation bring this appeal. (The appeal to the appellate court.)

'Route 37 is a two-lane highway running north and south through Mt. Vernon, Illinois. The accident involved here occurred about 2:00 P.M. on August 26, 1958, some one and one-half miles to the north of the city. The Cities Service tractor-trailer, driven by Anton Halmel, was proceeding northerly on Route 37, followed some 500 feet behind by an automobile driven by Phillip Lenseler. Proceeding in a southerly direction and to the north of the tractor-trailer was the Stilley Construction concrete mixer truck driven by Ned Thomas Barra, followed by the automobile in which the decedents were riding, an undetermined distance behind the mixer truck. It was undisputed that all the vehicles were in their proper lanes and traveling within the posted speed limit, and that the day was sunny and the road surface in good physical condition. As the concrete mixer truck and the tractor-trailer got to within 60 feet of each other, the two left rear dual wheels of the mixer truck rolled off the axle and continued to roll in a southerly direction down the highway. The left rear side of the mixer truck fell to the pavement, but Barra was able to keep the truck in its own lane until he maneuvered it to a stop on the southbound shoulder of the highway.

'One of the dual wheels proceeded directly down the center of the road and passed the automobile driven by Lenseler. The other wheel crossed into the northbound lane of traffic, directly in front of the tractor-trailer. In an attempt to avoid colliding with the wheel, Halmel testified that he applied his brakes immediately and attempted to turn his truck to the right. He stated that the wheel struck the front of the truck, throwing him against the windshield, and thereafter did not remember anything until he was told to enter an ambulance after the accident. The tractor-trailer cab swerved into the southbound lane, and the rear of the truck jack-knifed across the southbound lane onto the shoulder of the road. The decedents' automobile struck the tractor-trailer resulting in their deaths.

'The record shows that in June of 1958, Mr. Fred Curl of the Nelson Concrete Culvert Company, which ws not made a party to this action, inquired of Mr. Stilley concerning the possibility of renting one of Stilley's mixer trucks. It appears that two concrete mixer trucks were leased on a monthly rental. Nelson Concrete to care for their maintenance and repair. At the time of the conversation, Mr. Curl inquired whether Stilley had any drivers available who were familiar with the operation of the mixer trucks. Stilley recommended Ned Thomas Barra, who was not then in the Stilley employ, but who had been employed by Stilley until Stilley ran out of work in the spring of 1958.

'The concrete mixer truck involved in the accident was driven by Howard Rector, a Nelson Concrete employee, until August 25th, while Barra drove the other mixer truck. On August 11th, Rector's truck developed a flat on the outside left rear dual tire. Mt. Vernon Tire Service Corporation was employed by Nelson...