{ "id": 5195422, "name": "Howard Dragstrem, Plaintiff-Appellee, v. North Branch Metal Products, Inc., a Corporation, Defendant-Appellant", "name_abbreviation": "Dragstrem v. North Branch Metal Products, Inc.", "decision_date": "1958-12-16", "docket_number": "Gen. No. 47,525", "first_page": "57", "last_page": "63", "citations": [ { "type": "official", "cite": "20 Ill. App. 2d 57" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "8 Ill.2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "pin_cites": [ { "page": "312" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "247 Ill. App. 270", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3307153 ], "weight": 2, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-app/247/0270-01" ] } ], "analysis": { "cardinality": 436, "char_count": 7121, "ocr_confidence": 0.478, "pagerank": { "raw": 5.33135200572371e-08, "percentile": 0.33578173862646044 }, "sha256": "32754698293d48da4b9bc42d5fed5c88beffe270ddc491d2e51cc41f0972df59", "simhash": "1:8d8cd098c78fd06e", "word_count": 1174 }, "last_updated": "2023-07-14T21:34:34.543090+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LEWE, P. J. and MURPHY, J., concur." ], "parties": [ "Howard Dragstrem, Plaintiff-Appellee, v. North Branch Metal Products, Inc., a Corporation, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE KILET\ndelivered the opinion of the court.\nThis is an action to recover damages alleged to he due to the negligence of defendant in unloading plaintiff\u2019s truck. Verdict and judgment were for plaintiff for $1,550 in the main suit and against defendant on its third party action. Defendant has appealed only from the judgment for plaintiff.\nPlaintiff is an independent trucker who hired his services and his truck to Miller Transportation Company to carry scrap zinc from Anderson, Indiana, for use in defendant\u2019s smelting and refining business in Chicago. His truck arrived at defendant\u2019s plant on Friday, October 14, 1955, and several other truckers engaged in the same work had arrived before him. Defendant had employed a crane and operator for the purpose of unloading the trucks. This unloading technique was the lifting of the front end of the trailer and letting the load slide off. The crane lifted plaintiff\u2019s trailer which broke in two.\nThe main question is whether plaintiff was guilty of contributory negligence and, if not, whether the finding that defendant was guilty of negligence was contrary to the manifest weight of evidence.\nDefendant argues that plaintiff was guilty of contributory negligence by submitting his trailer to an unloading technique which he knew would risk the safety of the trailer. The jury answered in the negative a special interrogatory whether plaintiff realized the danger and knowingly exposed himself to the risk. The rule is: \u201cA party has no right to knowingly expose himself to a danger, and then recover damages for an injury which he might have avoided by the use of reasonable precaution,\u201d Munden v. East St. Louis Light & Power Co., 247 Ill. App. 270, 273.\nPlaintiff had leased equipment to various companies since 1938. He testified that the trailer was in good condition; that it was a \u201cframeless\u201d type; that his trailer had never been unloaded by crane; that before the unloading he had told defendant\u2019s superintendent, Barnett, \u201cI didn\u2019t think my trailer would stand to be unloaded in that manner,\u201d because of the frameless construction and heavy load, and that he said, \u201cThere was too much weight to lift in that manner\u201d; that he was told to wait until the rest of the trailers were unloaded; that Barnett then said, \u201cAll we can do is try it and see how it will work,\u201d and then \u201cif it shows any signs of weakening we can let it back down\u201d; that Barnett, not plaintiff, decided to unload that way; and that the crane picked up the front of plaintiff\u2019s truck with the resultant damage.\nThis is the evidence favorable to plaintiff which we think tended to prove the negligence of defendant in going ahead with the crane-unloading in the face of plaintiff\u2019s anxiety, and to prove due care on plaintiff\u2019s part in expressing that anxiety to Barnett. The distinction between this case and the Munden v. East St. Louis Light & Power Co. case (247 Ill. App. 270) is in plaintiff\u2019s expressed doubt as to the danger to his trailer. There, the evidence was undisputed that Mrs. Munden \u201cmade no inquiry or advised Bahr in any way what she was about to do.\u201d We cannot decide, as a matter of law, as the court did in that case, that plaintiff was guilty of contributory negligence barring recovery. The trial court in the case before us did not err in denying motions for directed verdict and for judgment notwithstanding the verdict.\nWe cannot reverse because plaintiff put his truck into position for unloading by the crane, made no objection to the unloading \u201cat that time,\u201d and was not \u201ccoerced.\u201d Barnett testified that he told plaintiff \u201cour other company\u201d unloaded \u201cframeless\u201d trailer trucks with a crane and that there never had been any damage done. He also told plaintiff that since the day was Friday, the unloading of plaintiff\u2019s trailer by hand could not be started until Monday. Plaintiff said \u201cI don\u2019t think he said they could promise it by Tuesday.\u201d From this evidence the jury could reasonably infer that plaintiff was reluctant to submit his trailer to the crane-lifting unloading practice, but that his reluctance was overcome by Barnett\u2019s persuasive statements about the \u201cother company\u2019s\u201d frameless trailers. We see no merit in defendant\u2019s contention that plaintiff had a choice between hand-and crane-unloading, and chose the risky mode. The jury could have found the choice was not free because of the fear of the several days\u2019 delay in hand-unloading as well as the expressed confidence of Barnett and his suggestion that the crane-unloading process be tried.\nOur conclusion is that the case was properly submitted to the jury; that the jury could reasonably infer negligence of defendant through the conduct of Barnett; that the special interrogatory is supported by the evidence; and that there is no basis for a claim that the verdict or special interrogatory is against the manifest weight of the evidence.\nWe see no merit in a point made by defendant that there was a variance between the complaint and proof. It contends that the complaint alleged negligence in the operation of the crane whereas the proof purported to show negligence on defendant\u2019s part in employing the crane to unload plaintiff\u2019s truck. But we think the allegation was broad enough to cover the proof, and there was no request for a more particular statement. Furthermore the answer indicates defendant understood that the negligence charged was that proved.\nThe court struck the part of defendant\u2019s answer \u201cthat plaintiff knew of the danger of damage to his property and took no precautions to avoid such damage.\u201d If this was error any prejudice to defendant was cured when the court submitted the special interrogatory to the jury.\nThe record does not show objection to plaintiff\u2019s attorney\u2019s argument to the jury. We shall not therefore consider the claim of prejudicial argument. Belfield v. Coop, 8 Ill.2d 293, 312; 2 I. L. P. sec. 263. The argument was not \u201cseriously prejudicial\u201d so as to justify our considering it, under the rule in Belfield v. Coop, p. 313.\nFinally defendant argues that prejudicial error was committed in refusing instructions it tendered. There is no argument in the brief relating defendant\u2019s instruction #11 to the evidence and showing prejudicial error. Instruction #14 was properly' refused since it is peremptory and assumes that plaintiff\u2019s truck would have been unloaded by hand \u201cthe next business day.\u201d Instruction #20 was properly refused. It purports to state the issues of fact, not as alleged in the pleadings, but from what defendant incorrectly assumed were the proper issues for the jury. And it is not denied that one of plaintiff\u2019s instructions contained the substance of the refused instruction.\nFor the reasons given the judgment is affirmed.\nAffirmed.\nLEWE, P. J. and MURPHY, J., concur.", "type": "majority", "author": "JUSTICE KILET" } ], "attorneys": [ "Sol H. G-anellen, of Chicago, for appellant.", "Kane and Kane, of Chicago (Edward E. Kane, of counsel) for appellee." ], "corrections": "", "head_matter": "Howard Dragstrem, Plaintiff-Appellee, v. North Branch Metal Products, Inc., a Corporation, Defendant-Appellant.\nGen. No. 47,525.\nFirst District, Second Division.\nDecember 16, 1958.\nReleased for publication February 4, 1959.\nSol H. G-anellen, of Chicago, for appellant.\nKane and Kane, of Chicago (Edward E. Kane, of counsel) for appellee." }, "file_name": "0057-01", "first_page_order": 73, "last_page_order": 79 }