Schueren v. Querner Truck Lines, Inc.

• Decision Date: 10 July 1959
• Docket Number: No. 58-0-25,58-0-25
• Citation: 22 Ill.App.2d 183,159 N.E.2d 835
• Parties: Harold SCHUEREN, Appellee, v. QUERNER TRUCK LINES, INC., a Corporation, Appellant.
• Court: United States Appellate Court of Illinois

Page 835

159 N.E.2d 835

22 Ill.App.2d 183

Harold SCHUEREN, Appellee, v. QUERNER TRUCK LINES, INC., a Corporation, Appellant.

No. 58-0-25.

Appellate Court of Illinois, Fourth District.

July 10, 1959.

Baker, Kagy & Wagner, East St. Louis, Francis D. Conner, John M. Ferguson, East St. Louis, of counsel, for appellant.

Moran & Beatty, Granite City, for appellee.

PER CURIAM.

Plaintiff sued defendant trucking company and others in the Circuit Court of Madison County for personal injuries sustained when struck by defendant's truck on the Chain-of-Rocks Bridge spanning the Mississippi River at Mitchell, Illinois. A verdict was returned against the truck lines for $18,000 and judgment entered thereon. Service was had on the defendants under the Illinois Non-Resident Motorist Statute. Chapter 95 1/2, Section 23, Illinois Revised Statutes, 1955.

A motion of defendants to quash service of summons was denied by the trial court. This motion was based on plaintiff's failure to file an Affidavit of Compliance with the Non-Resident Statute and also on the ground that the bridge is not an Illinois highway since the accident occurred nearer the Missouri than the Illinois shore. This ruling, and others arising in the course of the trial are relied on by defendant on this appeal. Defendant makes no specific argument that the verdict is against the manifest weight of the evidence. It contends that the alleged errors in various rulings by the Court require a new trial because the issues of liability and extent of damage were close on the facts.

On the date of the injury, August 29, 1956, plaintiff was engaged in painting the Chain-of-Rocks Bridge which is owned by the City of Madison. He was returning from lunch on the Missouri side of the river in a pick-up truck along with other workers. As the truck stopped on the bridge to discharge the workmen, westbound traffic halted and let plaintiff and others cross the bridge to the north side. There was no pedestrian walk on the bridge but there was a narrow curb along the edge of the roadway. As plaintiff and others stood on the curb, the westbound traffic started moving slowly. Defendant's vehicle was first in line. In the eastbound lane, there was another large truck. In the process of clearing this truck, defendant's driver pulled his truck to the edge of the curbing causing plaintiff to be caught between the side of the trailer and the railing of the bridge. Defendant's truck stopped immediately, and plaintiff was twisted around by other workmen and removed from the curb to the handrail. Plaintiff testified that when he saw the impending danger as the truck edged over toward him, he tried to get upon the railing but was knocked off balance by a side-mirror extending out from the cab of defendant's truck. The testimony of defendant's driver was to the effect that he proceeded slowly in a westerly direction when waved on by one or two of the workmen and assumed that the workmen had gotten to a position of safety when such signal was given to him. The evidence further indicated that the roadway was 22 feet wide, that defendant's truck was eight feet wide, and that the eastbound truck was in its own lane after the accident. As a result of the accident, plaintiff sustained severe injuries, necessitating hospitalization for 54 days.

The Complaint filed March 22, 1957, named as defendants, the trucking company, its driver, the owner of the trailer, and the City of Madison. The latter defendant owns and controls the Chain-of-Rocks Bridge. The Complaint alleged that the City of Madison was negligent in failing to provide a walk or guard rail on the bridge, and, in failing to protect plaintiff by the enactment and enforcement of proper traffic rules regulating traffic on the bridge. Petition for removal to the Federal Court was filed by defendant, but on May 24, 1957, the case was remanded to the Circuit Court of Madison County because the City of Madison was a party defendant and thus the case did not satisfy the diversity of citizenship ground of Federal jurisdiction. Following the denial of the trucking company's Motion to Quash Service of Summons noted above, it filed its Answer renewing the lack of jurisdiction allegation in an affirmative defense. It also raised the defense that the City of Madison had been joined as defendant without good cause or expectation of securing judgment against said defendant, and solely for the purpose of preventing removal of the cause to the Federal Court.

On the day that the case was set for trial, November 18, 1957, defendant presented its motion for a continuance on the ground that the truck driver defendant could not be located and that his testimony was essential to defendant's case. This motion was supported by affidavit which recited the steps taken by defendant since October 30, 1957, when the case was first set for trial, to locate the driver. From the affidavit and argument of counsel in support of the motion, it appeared that an investigating firm had been hired to locate the driver when it became apparent that his employer, the trucking company, was unable to find him. This motion was denied and trial subsequently commenced. In the course of trial, defendant renewed its motion based on the fact that the driver had been located in Dallas, Texas, but was under a doctor's care with flu, and could not make the trip to Edwardsville. This motion was given the fullest consideration by the trial court and denied. In the course of argument on the motion, plaintiff moved to dismiss the driver as a party-defendant and stipulated that the affidavit of what he would have testified to, if present, might be read to the jury. We conclude that the rulings of the trial court were within its discretion.

At the close of plaintiff's evidence, the defendant, City of Madison, moved for dismissal, which motion was granted. Again, defendant trucking company filed its Petition in the Federal Court for removal and at the same time moved to terminate the Circuit Court proceedings. The latter motion in the Circuit Court was denied and the trial concluded with judgment entered against defendant alone, the two individual defendants having been voluntarily dismissed from the case by plaintiff, and the City having obtained a directed verdict. Subsequently, the Federal Court again refused jurisdiction and remanded the case to the Circuit Court.

In the course of the remanding of the case from the Federal Court to the Circuit Court, a mix-up in the Circuit Clerk's office caused the case which ultimately was tried to be given the number of a prior case between the same parties which had been voluntarily dismissed by the plaintiff. Defendant argues that while all concerned were unaware of the confusion in case numbers until months after the trial, that it was prejudiced in some respects by this confusion, perhaps by the trial judge having the wrong file or pleadings in front of him, and therefore not being properly apprised of the defenses raised by defendant. When this matter was brought to the attention of the Court, an Order was entered amending the docket entries and directing the renumbering of the pleadings. We feel the matter of possible prejudice arising from such situation, is properly left to the discretion of the trial court. There being no specific showing...