Walker v. Midwest Emery Freight System, Inc.

558 N.E.2d 470, 200 Ill. App. 3d 790, 146 Ill. Dec. 507, 1990 Ill. App. LEXIS 981
CourtAppellate Court of Illinois
DecidedJune 29, 1990
Docket1-87-0263
StatusPublished
Cited by7 cases

This text of 558 N.E.2d 470 (Walker v. Midwest Emery Freight System, Inc.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Midwest Emery Freight System, Inc., 558 N.E.2d 470, 200 Ill. App. 3d 790, 146 Ill. Dec. 507, 1990 Ill. App. LEXIS 981 (Ill. Ct. App. 1990).

Opinion

JUSTICE LORENZ

delivered the opinion of the court:

Plaintiffs, James and Josephine Walker, appeal from a jury verdict in favor of defendants, Paul E. DeMuth (DeMuth) individually and d/b/a Lowrey Trucking Co. (Lowrey Trucking), Walter Greene, and John Tunstall, finding them not guilty of negligence. We address the following two issues: (1) whether the jury’s verdict was against the manifest weight of the evidence; and (2) whether Greene’s prior consistent statements were improperly admitted. For the following reasons, we affirm.

Plaintiffs filed a negligence action against defendants for injuries James Walker sustained when he was run over by a truck which was owned by DeMuth and leased to Midwest Emery Freight Systems, Inc. (Midwest Emery). The accident occurred in Midwest Emery’s truck storage yard and garage. Plaintiffs alleged that at the time of the accident, Greene was driving the truck and Tunstall was giving instructions to Greene. Plaintiffs alleged that DeMuth and Midwest Emery were liable under a respondeat superior theory of liability because Greene and Tunstall were their agents at the time of the accident. In their answers, DeMuth denied the agency relationship and Midwest Emery admitted the agency relationship.

In the first trial of this case, defendants raised an affirmative defense that plaintiffs’ common law action was barred under the Workers’ Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.) because an employee cannot maintain a common law negligence action against his employer or a co-employee if his injuries were accidental and arose out of and in the course of his employment. (See Walker v. Midwest Emery Freight Systems (1983), 119 Ill. App. 3d 640, 461 N.E.2d 1373.) The trial court struck the affirmative defense based on its finding that, as a matter of law, Walker was an independent contractor and not an employee of Midwest Emery. After trial, the jury returned a verdict in favor of plaintiffs, and defendants appealed, arguing that the trial court erred when it struck their affirmative defense. The appellate court agreed and held that, based on a truck lease agreement between Walker and Midwest Emery, Walker was an employee of Midwest Emery. Accordingly, defendants should have been allowed to present evidence on the affirmative defense. The court further found that although Walker was an employee of Midwest Emery, there was a question of fact as to whether Walker’s injury arose out of and in the course of his employment. The jury’s verdict was reversed, and the case was remanded for a new trial. On remand, a second jury trial was held which resulted in a verdict of not guilty for defendants and this appeal followed. From the record of the second trial, we summarize below only the testimony relevant to our decision.

Plaintiff James Walker testified that on March 24, 1974, he was in Midwest Emery’s yard performing maintenance on two trucks he owned and leased to Midwest Emery. His employee, David Hardin, 1 was assisting him. Greene and Tunstall were also in the yard attempting to start their trucks, which would not turn over due to cold weather. The trucks were owned by DeMuth, leased to Midwest Emery, and Greene and Tunstall were the drivers assigned to the trucks.

Walker testified that Greene and Tunstall asked him and Hardin to help them start Tunstall’s truck. They attached Walker’s truck (a tractor-trailer combination) to Tunstall’s truck (a tractor) with a chain and intended to tow Tunstall’s truck while spraying ether into the engine to encourage the engine to start. Hardin drove Walker’s truck, Greene drove Tunstall’s truck, and Walker was positioned behind the cab of Tunstall’s truck on the passenger side. Walker was to spray ether into the engine when the truck started to move.

Walker testified that Tunstall was acting as a flagman for him. When Walker was in position, Tunstall asked whether he was ready. Walker responded he was ready, and when the truck started to move, he sprayed ether into the engine while holding on to a grab handle on the truck. After travelling 25 feet, the truck engine started and coasted another 25 feet before it came to a stop. Walker asked twice whether it was okay to get off the truck but he could not hear anyone because of the noise. He also could not see anyone. After receiving no response for approximately 12 to 15 seconds, Walker started to climb off the truck. When he released his grip, the truck jerked and moved forward, causing him to fall to the ground. The truck ran over him.

Under cross-examination, Walker testified that after he finished working on his truck and before he helped start Tunstall’s track, there were a couple of drops of oil on the floor in the area where he was working. However, at a deposition taken on December 17, 1981, he testified that before he helped start Tunstall’s truck, he was cleaning up a four-foot spot of grease and oil on the floor. At trial, Walker testified that he did not step in the spot and, although he did not check his shoes, he did not have grease or oil on them.

Evidence was introduced that Walker filed an application for workers’ compensation benefits and accepted checks from Midwest Emery from April 9, 1974, to November 4, 1974. Also, evidence was introduced that Midwest Emery paid certain medical bills on Walker’s behalf.

Paul DeMuth, who was called as an adverse witness in plaintiffs’ case in chief, testified that within a couple of days of the accident, he spoke with the man who was driving Tunstall’s truck but he could not remember whether that man was Greene or Tunstall. That man told DeMuth that Walker fell off his own truck and that the accident did not occur in Midwest Emery’s yard but in the street outside the yard.

Defendant Greene, who was also called as an adverse witness, testified that Walker volunteered to help start Tunstall’s truck. At the time of the accident, Tunstall was walking away from the trucks. The truck travelled approximately 15 feet before it started and another 10 feet before it stopped for a total trip of 25 feet. Greene felt a bump after the engine started but before the truck stopped. Greene testified that after the truck stopped, it did not move or jerk forward. After the truck stopped, Greene learned Walker was run over. Immediately after the accident, Walker was lying on the ground and told Greene that he may have had grease on his shoes because he just slipped off the truck.

Greene admitted that in a deposition taken on January 18, 1980, he testified that the truck was pulled around the yard once, which was approximately the distance of one block, at a speed of five miles per hour and that after Walker fell, the truck travelled another 25 to 30 feet before it stopped.

Greene also admitted that he signed a statement dated March 16, 1976, which was two years after the accident. In the statement, Greene said he and Tunstall asked Walker to help them. Walker’s truck was connected by a chain to Tunstall’s trailer, although the statement mistakenly referred to a trailer rather than a tractor. Hardin was driving Walker’s truck, Greene drove Tunstall’s truck, and Tunstall gave Hardin a signal to start moving.

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Cite This Page — Counsel Stack

Bluebook (online)
558 N.E.2d 470, 200 Ill. App. 3d 790, 146 Ill. Dec. 507, 1990 Ill. App. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-midwest-emery-freight-system-inc-illappct-1990.