The opinion of the court was delivered by: Juergens, District Judge.
This is a civil suit arising against the United States of
America under the provisions of § 2674, Title 28, U.S.C. and §
60 to § 69, both inclusive, of Chapter 48, Illinois Revised
Statutes, 1955, commonly known as the "Scaffolding Act."
The plaintiff was employed by the Loren "Mike" Krause
Construction Company, Inc., who had a contract with the United
States, as a carpenter in the repair of building No. S-920 owned
by the United States at Scott Field Air Base, a military
installation. In the performance of his duties the plaintiff was
required to work upon a scaffold elevated 10 feet above the
surface of the ground. He fell from this scaffold and was
The suit was brought against the United States alleging the
violation of the provisions of the "Scaffolding Act" by wilfully
failing to maintain, furnish or provide plaintiff with a safe and
sufficiently supported scaffold upon which to carry out his
duties as a carpenter.
The United States of America answered denying all of the
allegations of the complaint except the jurisdictional averments
and at the same time filing a Third Party Complaint making Loren
"Mike" Krause Construction Company, Inc., a Third Party
Defendant, under which it claimed indemnification under its
contract with Krause; further stating that the plaintiff was an
employee of Krause, that the injuries to the plaintiff resulted
from the negligence of Krause in failing to furnish a safe and
sufficiently supported scaffold upon which plaintiff was to carry
out his duties and that if plaintiff recovered judgment from it,
then the United States was entitled to indemnification from
Krause pursuant to Paragraph 11 of the contract.
The case was tried by the court upon plaintiff's complaint, as
amended, the amended answer of the United States, the amended
answer of Loren "Mike" Krause Construction Company, Inc., to the
plaintiff's complaint, the Third Party Complaint and the amended
answer of the Third Party Defendant to the Third Party Complaint.
Loren M. Krause, President of the Loren "Mike" Krause
Construction Company, Inc., was called as a witness under Rule
43b. He testified that he had a contract with the United States
to repair building S-920 at Scott Field; that it was a one-story
frame building "at the very top" 15 or 16 feet high; that the
patented steel scaffolding belonged to him; that they are in 5
feet high and 7 feet long sections and that the trades that would
be working off of them put them together; that any scaffolding
has a tendency to shift from the weight walking across it; in
other words, it has a tendency to creep and that to keep the
boards from shifting or creeping, if a scaffold is properly
constructed, the boards the men walk on have cleats under them.
When called as his own witness, he testified that the people he
had working on the job were not employees of the government but
were his employees. He paid their wages and directed the
performance of their work.
Plaintiff Vincent Schmid testified he was working on the alert
hangar at the field when between 2 and 3 o'clock in the afternoon
Krause's foreman called him "to come from the alert hangar to
this building" and directed him to put siding on the building.
The scaffold was there. It was 10 feet high and 40 or 50 feet
long. That he did not examine it before he went up. That he was
working there a short time when he and Charles E. Thomas, a
fellow carpenter, walked to side of scaffold to get material laid
there by a laborer. That "as we walked from the first on to the
second section, we stepped on the board we used as a walk-away
and the board went down with us." It slipped off the end of the
scaffold and he was thrown to the ground and was injured. That
while on the ground he looked at the boards and that "they lacked
the cleats on the ends." He also testified that he then noticed
that the scaffold had only one brace on each side instead of the
usual two and that "only one brace will make it shake." The
cleats are to keep the boards from walking back and forth and
working themselves loose. That a Mr. Dunbar, a government
inspector, came around once or twice a day and that if material
was bad he "gave orders" about that. Sometimes a man in uniform
came with him. He drove a United States truck.
On cross-examination he testified that he was an employee of
Krause and not of the government and that Dunbar was not boss on
that particular job and "never told me anything on this job."
That if Dunbar told us about bad weather-boarding "we would get
in touch with our foreman and it would be taken care of." That he
took orders from his foreman and that the United States did not
erect the scaffold. That he noticed nothing unusual about the
scaffold when he walked over it and that if he had noticed
anything unusual about it he would have done something about it.
Charles E. Thomas, a fellow carpenter, testified that plaintiff
had worked about half an hour before accident happened; that "I
would say a board slipped off"; that 2 or 3 boards fell off and
they had no cleats but that some of the boards had cleats. That
inspectors came around about once a day but exercised no active
control on what to do or what not to do or where to place this or
that. On cross-examination he admitted telling Mr. Krause some
time after this accident that it was his carelessness and not his
(Krause's). That on the 19th of September, 1955, the day prior to
the accident, he helped carry the scaffold down there "we just
carried it end for end." That it was the same frame and
everything on the scaffold on the 20th as it had been on the day
before and that the only difference was they moved it along
as the work progressed. That he had never complained about the
scaffold being inadequate or deficient.
LeRoy Feltman, a fellow employee, testified that he was about
6 or 7 feet north of plaintiff when he fell. That he was going
for material to hand up to them; that he would bring it up and
lay it up against the scaffold. That some boards had cleats,
others didn't. That a government inspector was there a little
after 8 that morning, that he was there about once a day. That if
they passed up a board that was bad the inspectors would tell us
to take it out. That the government inspectors had no control
whatever over him or any of Krause's work, that he took orders
from the superintendent of Mr. Krause.
The remaining testimony in this case pertains to the injuries
and the medical interpretations thereof which is not necessary to
discuss in view of the decision to be made herein.
The United States Supreme Court in the recent case of Rayonier,
Inc., v. United States, 352 U.S. 315, 77 S.Ct. 374, 376, 1
L.Ed.2d 354, said:
"But as we recently held in Indian Towing Co. v.
United States, 350 U.S. 61, 76 S.Ct. 122, [100 L.Ed.
48], the test established by the Tort Claims Act for
determining the United States' liability is whether a
private person would be responsible for similar
negligence under the laws of the State where the acts
Therefore, if a private person would be responsible for similar
negligence under the Scaffolding Act, then the United States
would be responsible.
The so-called Scaffolding Act (Chapter 48, Sections 60-69,
inclusive, Revised Statutes 1955) is entitled as follows:
"An Act providing for the protection and safety of
persons in and about the construction, repairing,
alteration, or removal of buildings, bridges,
viaducts, and other structures, and to provide for
the enforcement thereof."
Section 60 reads as follows:
"That all scaffolds, hoists, cranes, stays,
ladders, supports or other mechanical contrivances,
erected or constructed by any person, firm, or
corporation in this State for the use in the
erection, repairing, alteration, removal or painting
of any house, building, bridge, viaduct, or other
structure, shall be erected and constructed in a
safe, suitable and proper manner, and shall be so
erected and constructed, placed and operated as to
give proper and adequate protection to the life and
limb of any person or persons employed or engaged