Potter v. Chicago Heights Motor Freight, Inc., 78-1958

• Citation: 396 N.E.2d 1366,78 Ill.App.3d 676,33 Ill.Dec. 642
• Decision Date: 16 November 1979
• Docket Number: No. 78-1958,78-1958
• Parties: , 33 Ill.Dec. 642 Eleanor POTTER, Individually and as Administratrix of the Estate of Herbert Potter, Deceased, Plaintiff-Appellee, v. CHICAGO HEIGHTS MOTOR FREIGHT, INC., and Thomas Jackson, Defendants-Appellants, Vulcan Tube and Metals, Defendant.
• Court: United States Appellate Court of Illinois

Page 1366

396 N.E.2d 1366

78 Ill.App.3d 676, 33 Ill.Dec. 642

Eleanor POTTER, Individually and as Administratrix of the Estate of Herbert Potter, Deceased, Plaintiff-Appellee, v. CHICAGO HEIGHTS MOTOR FREIGHT, INC., and Thomas Jackson,

Defendants-Appellants,

Vulcan Tube and Metals, Defendant.

No. 78-1958.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 16, 1979.

[33 Ill.Dec. 643] Ruff & Grotefeld, Ltd., Chicago (Jack L. Uretsky, Chicago, of counsel), for defendants-appellants

Frank J. Mackey, Jr., Chicago (Sidney Z. Karasik, Chicago, of counsel), for plaintiff-appellee.

MEJDA, Justice:

This is an interlocutory appeal pursuant to Supreme Court Rule 308. (Ill.Rev.Stat.1977, ch. 110A, par. 308.) Following the denial of defendants' motion for summary judgment, the trial court certified three questions for this court's consideration. The basic background facts are undisputed for the most part.

Plaintiff's husband died on May 9, 1973, as a result of injuries suffered while unloading a shipment of steel tubing from a flat-bed truck owned by defendant, Chicago Heights Motor Freight (Freight). The decedent was then employed as a "crane hooker" by Maremont Corporation (Maremont). The steel tubing had been consigned to Maremont by Vulcan Tube and Metals (Vulcan) which had loaded the steel tubing onto the trailer. The tubing was loaded in bundles of 91 tubes each, 21/2 inches X .045 inches in size and gauge. There were 27 bundles in all, each weighing about 1500 pounds. The bundles were 13 feet long and were loaded in three sections end-to-end on the 40 foot trailer. Each section consisted of 9 bundles, stacked 3 across and 3 high. The stacks were about 8 feet high and about 8 feet wide, the width of the trailer. Two-by-fours were placed under the load and between each layer.

Freight received the shipment at its Chicago Heights terminal. Defendant Jackson, ¹ a truck driver for Freight with 15 years experience, was assigned to deliver the trailer to Maremont. Chains had been placed over the load in compliance with union rules to insure safe transport. Before leaving, he inspected the load and found that "it looked good. It was tight." He then drove the loaded trailer to Maremont and gave the bills of lading to Maremont's receiving clerk. At his deposition, Jackson testified that he asked the clerk whether he wanted the entire load unchained at one time or each stack as they were unloaded. The clerk told him to "unchain the whole thing." After unchaining the load, Jackson went outside and began to read a paper. He testified that when he unchained the bundles they did not shift or move. He did not see the accident but returned immediately thereafter. He saw that 14 of the 27 bundles had been unloaded and that the steel strappings were intact.

Robert Richardson, a truck driver for another company, witnessed the accident. At his deposition he testified that he was waiting to unload his truck and "went in to find out what the hold-up was." He saw decedent standing on top of a lift of tubing on the truck. He stated that decedent apparently lost his balance and fell off the truck. Later in his deposition he stated that the bundle shifted and that is why decedent was trying to get away from it and lost his balance. One of the bundles fell off and hit decedent in the back. Based upon Richardson's nine years of experience as a truck driver, in his opinion the truck lacked adequate load-securing devices and was loaded in a manner dangerous to people unloading it.

Maremont refused to unload the rest of the steel and returned it to Vulcan for reshipment. Two days after the accident Maremont sent a letter to Vulcan directing Vulcan to load future shipments of tubing on trailers "with four feet high sides" and to "load the bundles only two high."

Plaintiff, individually and as administratrix of decedent's estate, brought this wrongful death action against Freight, Vulcan and Jackson for damages caused by their alleged negligence in loading, operating and delivering the trailer and freight.

As to Freight and Jackson, the complaint alleged in relevant part that they "were guilty of one or more of the following careless and negligent acts or omissions:

"(a) * * *

(b) Failed to provide side rails on the said trailer;

(c) Carried and delivered bundles of steel tubing that was loaded in an unstable manner;

(d) * * * (e) Failed to provide safe and adequate service, equipment and facilities for the transportation of the said steel tubing, in violation of Chapter 951/2, Section 18-310, Illinois Revised Statutes;

(f) Drove or moved said trailer even though it was not constructed or loaded so as to prevent its load from dropping or shifting, in violation of Chapter 951/2, Section 15-109, Illinois Revised Statutes;

(g) * * *."

Sub-paragraphs (a), (d) and (g) were stricken by the trial court and are not involved on appeal.

Freight and Jackson denied the allegations and Freight counterclaimed against Vulcan and also filed a third-party action against Maremont. Maremont's motion to dismiss the third-party complaint is still pending in the trial court. Freight and Jackson filed a motion for summary judgment, contending that they had breached no duty owed to decedent. The motion was denied as well as Freight's motion for a rehearing. The trial court then certified the following questions for appeal:

"1. Whether a motor carrier, transporting a shipment of steel tubing on a flat-bed trailer, whose driver participated in the loading and unloading process only by chaining the loading at the point of departure and removing the chains upon arrival at destination, has the duty to:

(a) Make a reasonable inspection of the transporting vehicle and the freight to determine whether it is reasonably safe to unload the cargo; and

(b) Either repair or warn consignee of any conditions, except obvious defects in the freight and the transporting vehicle, which make it unsafe to unload the cargo?

2. Whether Ill.Rev.Stat.1973, ch. 951/2, sec. 18-310, which in pertinent part provides that:

'It shall be the duty of every common carrier of property by motor vehicle to provide safe and adequate equipment, and facilities * * * and observe * * * just and reasonable regulations and practices relating * * * to the manner and method of presenting, marking, packing and delivering property for transportation, the facilities for transportation And all other matters relating to or connected with the transportation of property in interstate ² Commerce.' (Emphasis supplied.)

imposes a duty on a motor carrier transporting a shipment of steel tubing on a flat-bed trailer, to provide safe and adequate facilities and to observe just and reasonable practices relating to the manner and method of presenting and delivering cargo for unloading?

3. Whether Title 49, USC CFR, Sec. 392.9 (49 C.F.R. § 392.9) imposes a duty on a motor carrier transporting a shipment of steel tubing on a flat-bed trailer to secure adequate means of fastening the vehicle's cargo and to periodically examine and adjust the cargo and the cargo securing devices in order to maintain the security of the load?"

OPINION

I

The first certified question deals with the duty of a carrier to employees of a consignee of goods to inspect a vehicle And its freight, and to warn of latent defects in either of them. Plaintiff contends that a carrier has a duty to inspect the freight as well as the vehicle, while defendants assert that the duty extends only to an inspection of the vehicle. Both parties rely on Conway v. Belt Ry. Co. of Chicago (1968), 41 Ill.2d 45, 241 N.E.2d 434, as stating the applicable law. Conway involved injuries suffered by an employee of a consignee while unloading wooden beams from a gondola railroad car. The court made it clear that the defective lading condition was obvious to all parties concerned and limited the case by stating:

" * * * We are concerned not with failure to inspect or with unknown defects in the car, but with obvious defects in the load itself, and the responsibility of the delivering carrier for the negligent unloading operations by a third party." 41 Ill.2d at 50-51, 241 N.E.2d at 437.

Because of the obvious nature of the defective lading and the fact that plaintiff had notice of the defect, the court found that the carrier had not breached any duty to warn plaintiff. Conway makes it clear that the carrier has no duty to warn a consignee's employee of obvious or patent defects.

The instant case does not involve a patent defect in the lading but one which, if it existed at all, was not readily observed by either party. Concerning these latent defects, the supreme court stated the general rule as follows:

"The rule in other jurisdictions, as in Illinois, is that the carrier delivering a railroad car received from a connecting carrier owes the consignee and its employee engaged in unloading the car the duty of making a reasonable inspection of such car to determine whether it is reasonably safe for its foreseeable uses, and the duty to either repair or warn the consignee of any conditions which render the car unsafe for unloading. (Rylander v. Chicago Short Line Railway Co., 17 Ill.2d 618, 621, 161 N.E.2d 812; Kansas City Southern Railway Co. v. Guillory (Texas, (Tex.Civ.App.) 1964), 376 S.W.2d 72, 75; Illinois Central Railroad Co. v. Crawford ((Miss.,) 1962) 244 Miss. 300, 143 So. (2d) 427, 429; Pellegrini v. Chicago Great Western Railway (7th Cir., 1964), 319 F.2d 447.) Such duty, however, extends only to hidden defects. The delivering carrier is not liable to one who had notice or warning of the defect. * * *." 41 Ill.2d at 51, 241 N.E.2d at 438.

In this statement the duty is limited to inspection of the car but the opinion suggests that a duty to inspect for latent defects in the lading may be included.

Defendant relies on Lewis v. New York, Ohio & W. Ry. Co. (1914), 210 N.Y. 429, 104 N.E. 944, as establishing that the carrier has...