Young v. Gateway Transp. Co., Inc.

• Decision Date: 28 February 1975
• Docket Number: No. 59605,59605
• Citation: 26 Ill.App.3d 864,326 N.E.2d 222
• Parties: Donna R. YOUNG, Plaintiff-Appellee, v. GATEWAY TRANSPORTATION COMPANY, INC., a corporation and Elvis E. Bowen, Sr., Defendants-Appellants, and James Hammer, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 222

326 N.E.2d 222

26 Ill.App.3d 864

Donna R. YOUNG, Plaintiff-Appellee, v. GATEWAY TRANSPORTATION COMPANY, INC., a corporation and Elvis E. Bowen, Sr., Defendants-Appellants and James Hammer, Defendant-Appellee.

No. 59605.

Appellate Court of Illinois, First District, Fifth Division.

Feb. 28, 1975.

Dowd, Dowd & Dowd, Chicago, for defendants-appellants; Michael E. Dowd and Philip J. McGuire, Chicago, of counsel.

Eugene I. Pavalon, Asher, Greenfield, Gubbins & Segall, Ltd., Chicago, for plaintiff-appellee Donna R. Young; Peter B. Carey, Chicago, of counsel.

McKenna, Storer, Rowe, White & Haskell, Chicago, for plaintiff-appellee James Hammer; Royce Glenn Rowe and Robert S. Soderstrom, Chicago, of counsel.

SULLIVAN, Justice.

In this action, plaintiff sought damages because of injuries suffered in a motor vehicle collision involving a moving automobile operated by James Hammer, in which plaintiff was a passenger, and a standing semitrailer owned by defendant Gateway and operated by its employee, defendant Bowen. Judgment was entered on the jury's verdicts in favor of plaintiff in her claim against Gateway and Bowen, and in favor of Hammer in her claim against him. A third party complaint by Gateway and Bowen against Hammer for indemnity based on the active passive theory of negligence was dismissed before the trial.

On appeal, Gateway and Bowen contend that (1) the jury was improperly instructed (a) as to alleged violations of certain statutes and regulations, and (b) as to plaintiff's claim for future medical expenses and loss of earnings; (2) no act or omission on their part was a proximate cause of plaintiff's injuries; (3) the court improperly excluded certain evidence offered by them; and (4) their third party complaint against Hammer should not have been dismissed. Plaintiff has not appealed from the verdict and judgment in favor of Hammer on her claim against him.

Plaintiff testified that in the late afternoon, she accompanied her mother to a tavern where Hammer was working as a bartender. All three left there about 8 P.M. and went to the Viking Tap where, after about 30 minutes her mother went home, and she and Hammer stayed until about 10:30 or 11 o'clock. Hammer was driving her to her brother's home when the accident occurred. He was driving south in the curb lane about one car length behind Hammer testified that he finished his work as a bartender about 7 P.M. and then talked with plaintiff and her mother until about 9 P.M., when all three went to the Viking Tap. Plaintiff's mother left there after about 30 minutes, and about 11 P.M. he offered to drive plaintiff to her brother's home. He was traveling about 30 to 35 miles per hour south on U.S. 51 in the curb lane, about a car length behind a moving semitrailer truck. When that truck swerved to the left, plaintiff shouted, 'There's a truck.' He then observed for the first time a truck which was stopped in the curb lane. He braked and swung to the left, but the front of his car struck the left rear wheels of the truck. He saw no lights, reflectors, flares or fuses. Hammer also stated that during the six years he lived in Rockford, Illinois, he had observed 'No Parking at Any Time' signs along the west curb of U.S. 51, in the area of the accident.

a semitrailer truck, and when that truck swerved suddenly to the left, she saw another truck stopped along the west curb. She shouted, 'It's a truck,' and then Hammer's car struck defendants' parked truck. She saw no lights or reflectors on the truck and no flares or lanterns at the rear of the truck.

Bowen testified he had been employed by Gateway for 7 1/2 years as a driver and, on the night of the accident, he was on a trip to Chicago for Gateway. He was on U.S. 51 in Rockford, Illinois, traveling south, when a buzzer and a red light on the instrument panel indicated a loss of air pressure, which automatically set his brakes. He was in the curb lane and came to a stop in front of Gil's Diner. During the two blocks he had been driving on the highway, he did not notice any 'No Parking' signs.

Bowen also stated that before leaving the Rockford terminal, he had checked his equipment and noticed that all lights were working. When he stopped at the curb, he turned on his emergency flashers and went to the phone booth outside of Gil's Diner to call the Waddell Garage. He was in the booth when his truck was struck. The impact broke one corner light, but all the others on the truck were still working. After the arrival of the police, he released the brakes and drove the truck to the Waddell Garage, where a diaphragm from a connection in the air brake line was replaced. He had flares but did not place them nor reflectors or any other warning indicators at the rear of the truck. He was familiar with Gateway safety bulletins requiring safety equipment, including flares, to be placed at the rear of a truck on a highway.

Bowen stated he had not been in Gil's Diner on the night of the accident. He did know Karline Hunter and saw her at the diner on the night of the accident, but he denied having any conversation with her. He was familiar with the area, but he denied knowing that there were any 'No Parking' signs at the west curb, and he was impeached on that point by his deposition testimony that he knew there was no parking at the west and east curbs.

The deposition of Karline Hunter was read into evidence. She was a waitress at Gil's Diner and knew Bowen. On the night of the accident, Bowen parked his truck at the curb just north of the diner. He made no call from the phone booth outside but, instead, came into the diner where he drank coffee for 10 or 15 minutes before the accident occurred. When she heard the impact, she and Bowen ran outside and saw that an automobile had struck his truck. She noticed no lights burning on the truck, and she stated that the headlights and taillights were not lighted and that no flares were behind the truck.

Bowen told her to say she overheard him call the garage to report brake trouble and not to say he stopped in the diner for coffee. He said he would take 'the disc' out of the truck and warned her that, if she wanted her job, she had better cooperate with him. Subsequently, she related to the

police what Bowen had told her to say. After the crash, she heard Bowen call the Waddell Garage and say, 'Come over and get the disc of mine out because I had an accident,' and that, 'I want the broken disc.' During the six months prior to the occurrence, Bowen had been in the diner three or four times a week.

OPINION

I.

Defendants argue that the trial court committed reversible error in giving certain instructions to the jury regarding alleged statutory violations by defendants. They complain first of plaintiff's Instruction No. 28, which addresses itself to the responsibility of illuminating disabled freight-hauling vehicles. This instruction paraphrased the language of the statute (Ill.Rev.Stat.1967, ch. 95 1/2, par. 218(b)) as follows:

'There was enforced in the State of Illinois at the time of the occurrence in question, a certain statute which provided that:

'Whenever any motor vehicle which is designed and used for pulling or carrying freight is disabled during the period between sunset and sunrise and such motor vehicle cannot immediately be removed from the main travelled portion of a highway outside of a business or residence district, the driver shall cause such flares, lanterns, red reflectors or other signals to be lighted and/or placed upon the highway 100 feet to the rear of the vehicle, and the other upon the roadway side of the vehicle.'

If you decide that a party violated the Statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.'

Defendants' objection premises on the limitation of this statute to those instances when a freight-hauling vehicle becomes disabled outside of a business or residential district. They contend the instruction should not have been given, because there was testimony that certain mercantile establishments were located in the area of the occurrence. Thus, they say that the truck was stopped in a 'business district,' as defined in Section 1--106 of the Illinois Vehicle Law and Section 113(a) of the Uniform Act Regulating Traffic on Highways (Ill.Rev.Stat.1967, ch. 95 1/2, pars. 1--106 and 113(a)), as follows:

'The territory contiguous to and including a highway when within any 600 feet along such highway there are buildings in use for business or industrial purposes, including but not limited to hotels, banks, or office buildings, railroad stations and public buildings which occupy at least 300 feet of frontage on one side or 300 feet collectively on both sides of the highway.'

From our review of the record, it does not appear that there were business or industrial establishments occupying 300 feet of highway frontage on one or both sides collectively within any 600 foot area of the highway. There is testimony that the following buildings were on the west side of Highway 51: Gil's Diner, The Sparkle Doughnut Shop, the Waddell White Garage and the Waddell White Service Facility. The testimony indicates the garage is located 100 feet north of the doughnut shop and that the service facility is about 400 feet further north of the garage. However, there is no evidence of any other buildings within the 400 feet between Waddell's garage and its service facility and, although it appears that the buildings span a distance of 600 feet, there is no evidence that they 'occupy at least 300 feet of frontage along the highway,' as stated in the statute. Furthermore, there is no testimony concerning any buildings on the east side of the highway.

Thus, we believe the record reveals support for plaintiff's position regarding the applicability of the statute and, in the...