Parson v. Illinois Bell Telephone Company

• Decision Date: 25 June 1973
• Docket Number: No. 72-1361.,72-1361.
• Citation: 481 F.2d 458
• Parties: Chester PARSON, Plaintiff-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, et al., Defendants-Appellants. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, and William R. Cooper, Third Party Plaintiffs-Appellants, v. ALLIED ASPHALT PAVING CO., an Illinois corporation, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

481 F.2d 458 (1973)

Chester PARSON, Plaintiff-Appellee, v. ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, et al., Defendants-Appellants.

ILLINOIS BELL TELEPHONE COMPANY, an Illinois corporation, and William R. Cooper, Third Party Plaintiffs-Appellants, v. ALLIED ASPHALT PAVING CO., an Illinois corporation, Third Party Defendant-Appellee.

No. 72-1361.

United States Court of Appeals, Seventh Circuit.

Argued April 11, 1973.

Decided June 25, 1973.

Robert V. R. Dalenberg, Alan N. Baker, Daniel M. Schuyler, Chicago, Ill., for appellants.

Alvin G. Hubbard, Frederick W. Temple, Robert J. Cooney, David J. Santori, Chicago, Ill., for appellee.

Before SWYGERT, Chief Judge, BARNES, Senior Circuit Judge,^* and KILEY, Circuit Judge.

PER CURIAM.

This is a personal injury action by Chester Parson, an Arkansas resident and employee of Allied Asphalt Paving Co. (Allied), an Illinois corporation, against Illinois Bell and its employee William R. Cooper, alleging common law negligence. Illinois Bell and Cooper filed a two count third party complaint against Allied, in Count I claiming indemnity from Allied under a common law theory, and in Count II claiming indemnity under the Illinois Roads and Bridges Statute, Sm.-Hurd Stat.Ann. ch. 121, § 314.1 et seq. (Cum.Supp. 1973-74).

The evidence shows that on October 14, 1969, at about 9:00 a. m., Allied was resurfacing Illinois Route 19, an east-west country road near Elgin, Illinois. Parson was acting as Allied's flagman for eastbound traffic, since only one lane of traffic was in use during the road work. He was using a sign on a staff which read "Stop" for eastbound and "Slow" for westbound traffic. Parson flagged down a car being driven east by Albert Vucsko. Vucsko's car was halted about 200 feet beyond the crest of a small hill. Cooper, an employee of defendant-third party plaintiff Illinois Bell, at that time was driving an Illinois Bell repair van eastbound. He knew that intermittent construction was being done on Route 19, and often used the road. The day was clear.

No warning signs had been posted by Allied at the construction area. As Cooper passed over the crest of the hill at approximately 45 miles per hour, the posted speed limit, he saw the road repair machinery, did not see Vucsko's car at a stop until he was 50 feet from it, and did not reduce his speed until he saw it. He could not stop in time to avoid hitting Vucsko's car. Parson, standing near Vucsko's car, saw Cooper coming and jumped onto the right shoulder of the road. Cooper did not see Parson until after he applied his brakes and was leaving the road. He was unable to avoid hitting Parson.

At the close of all the evidence¹ the trial court granted Allied's motion for a directed verdict as to Count I of the third party complaint on the ground that Cooper was the "active" tortfeasor and that he and Illinois Bell were barred from indemnity. The court reserved ruling on the motion as to Count II. The jury returned a general verdict against Illinois Bell and Cooper and in favor of Parson in his suit; also returned a special verdict finding that Allied had willfully and knowingly violated the Illinois Roads and Bridges Statute in failing to give proper warnings; and that its violation of the Statute was the proximate cause of Parson's injuries. The court entered judgment in favor of Parson on the general verdict, and entered judgment — notwithstanding the special verdict — in favor of Allied on Count II.

Illinois Bell and Cooper contend that the court erred in instructing the jury with respect to the question of Cooper's duty to reduce speed under certain circumstances contained in Sm.-Hurd Stat.Ann. ch. 95½, § 146 (1967), as amended, ch. 95½, § 11-601 (Cum. Supp. 1973-74).² We see no merit in the contention that the effect of the instruction placed upon Illinois Bell and Cooper the "absolute duty" to decrease speed when approaching the crest of the hill. In Kanousis v. Lasham Cartage Co., 332 Ill.App. 525, 541-542, 76 N.E.2d 239, 246 (1947), the Illinois court approved the use of a similar instruction which provided that "speed shall be decreased as may be necessary to avoid colliding. . . ." In the case before us the use of the modified phrase "speed must be decreased" in the instruction was not erroneous. The test of instructions is not how the meaning can be changed by the ingenuity of counsel's interpretation, but what the ordinary man acting as a juror will, in the context of all the instructions understand. Hulke v. International Manufacturing Co., 14 Ill.App.2d 5, 52-53, 142 N.E.2d 717 (1957).

Neither do we see error in the giving of an instruction with respect to a driver's duty to obey warning signals on highways or bridges. Illinois Bell and Cooper argue that the evidence did not warrant the instruction and that Parson's performance in the circumstances of the occurrence violated the Illinois Manual of Uniform Traffic Control Devices, thereby failing to provide a condition precedent contemplated for calling the statute into play. We think the evidence as to Parson's position and equipment and Cooper's lookout presented questions of fact which justified instructing the jury as to Cooper's performance of his duty as a driver under the Roads and Bridges Statute.

We have not been persuaded that the district court erred in directing verdict for Allied on the ground that Illinois Bell and Cooper were "active" tortfeasors. We think the court was entitled to find as a matter of law that Cooper was an "active" tortfeasor. And the court was justified in deciding that Illinois Bell and Cooper, and not Allied, should bear the loss. See Sears Roebuck & Co. v. Employers Mutual Ins., 6 Ill. App.3d 10, 13, 284 N.E.2d 386 (1972).

Illinois Bell and Cooper contend that the district court erred in setting aside the verdict of the jury as to Count II which alleges a cause of action under the Illinois Roads and Bridges Statute, Sm.-Hurd Stat.Ann., ch. 121, § 314.1 et seq. (Cum.Supp.1973-74). Count II alleges that Allied failed in its duty to place warning signals in advance of Parson's station at the construction site.

The district court found that the special verdict — that Allied was guilty of willful violation of the Roads and Bridges Statute — was amply supported by the evidence. The court concluded, however, that nevertheless Illinois Bell and Cooper, the "active" tortfeasors, may not recover indemnity under either the statute or the Manual of Uniform Traffic Control Devices. Illinois Bell and Cooper argue that this conclusion was erroneous because the court's conclusion was based upon the active-passive tortfeasor doctrine; and because the court failed to recognize the duty of Allied to Illinois Bell and Cooper under the Roads and Bridges Statute.

We have studied the reasoning in the Judgment Order of the district court on this contention. We are persuaded by that reasoning. We adopt that Judgment Order, appended to this opinion, as the basis of our decision that the court did not err in entering judgment for Allied notwithstanding the special verdict for Illinois Bell and Cooper.

The judgment for Allied is affirmed.

JUDGMENT ORDER

This cause comes on to be heard on the Post-Trial Motion of the Third Party Defendant Allied Asphalt Paving Co. for a new trial or, in the alternative, for a judgment in its favor against Illinois Bell Telephone Company, defendant and Third Party Plaintiff. The court at the close of all the evidence granted the Third Party Defendant's Motion for a directed verdict as to Count I of the Amended Third Party Complaint on the ground that the Third Party Plaintiff was clearly guilty of active negligence and therefore was barred from indemnification as to the theory of active-passive negligence.

The court reserved ruling on the Motion for a directed verdict as to Count II of the Amended Third Party Complaint. Therein the Third Party Plaintiff seeks recovery on the theory that the Third Party Defendant wilfully or knowingly violated the Illinois Roads and Bridges Statute or the Manual of Uniform Traffic Control Devices by failing to post warning signs at the approaches of its work, and that any negligence of the Third Party Plaintiff was irrelevant under this theory. Over objection of the Third Party Defendant, this alternative cause of action was submitted to the jury on a Special Verdict, along with the principal case of plaintiff Chester Parson against Illinois Bell Telephone Company for negligence. Parson was an employee of Allied Asphalt and therefore could not sue it.

The Illinois Roads and Bridges Act provides in part as follows:

Section 314.4 Any portion of highway or bridge which is closed to all traffic shall be marked at each place where vehicles have accessible approach to such portion of highway or bridge, and at a sufficient distance from the closed portion of such highway or bridge shall be marked with an adequate number of safe, suitable, and proper warning signs, signals or barricades as set forth in the Manual of Uniform Traffic Control Devices for Streets and Highways published by the Department of Public Works and Building so as to give warning to approaching motorists that such portion of bridge or highway is closed and

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