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Oldham v. Kubinski

SEPTEMBER 19, 1962.

ALBERT OLDHAM, PLAINTIFF-APPELLEE,

v.

JOHN KUBINSKI, LEONARD KUBINSKI, BERNARD KUBINSKI AND DONALD KUBINSKI, D/B/A JOHN KUBINSKI & SONS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Will County; the Hon. DAVID E. ORAM, Judge, presiding. Affirmed.

CROW, J.

Rehearing denied October 9, 1962.

This is an appeal by the defendants from a judgment for $50,000 in favor of the plaintiff, Albert Oldham, against the defendants John Kubinski, Leonard Kubinski, Bernard Kubinski and Donald Kubinski, d/b/a John Kubinski & Sons. Anton Brozovich, who was also a party defendant and who was alleged to have been the agent, servant and employee of these defendants, was found "not guilty" and a judgment to that effect was entered thereon. No appeal has been taken from that judgment finding Brozovich "not guilty." The case was submitted to the jury as to all the defendants, their motions for directed verdicts at the close of the plaintiff's evidence and of all the evidence being denied. The verdict was not guilty as to the defendant Brozovich, and guilty as to the defendants Kubinski. A post-trial motion which consisted of a motion for judgment for the defendants notwithstanding the verdict was filed by these defendants, and was denied. The notice of appeal asks the judgment be reversed and judgment be entered for the defendants or the cause be remanded with such instructions.

It is charged in the amended complaint that the plaintiff, as a laborer, was engaged July 3, 1958, in the removal and destruction of a certain building or structure located on the northwest corner of Joliet and Van Buren streets in the City of Joliet; the defendants, John Kubinski & Sons, were engaged as subcontractors in the destruction and removal of the walls of said building; said defendants owned a certain hoist or mechanical contrivance which was being operated by their agent, servant and employee, the defendant Anton Brozovich; the hoist or mechanical contrivance was being used as a scaffold or working hoist and the plaintiff was working thereon; there was then in effect the Structural Work Act, Ch 48 Ill Rev Stats, 1957, pars 60-69, certain applicable language thereof being alleged; it was the duty of the defendants to place and operate the scaffold or working hoist or mechanical contrivance in a safe, suitable, and proper manner so as to afford proper and adequate protection to the plaintiff; the defendants were guilty of one or more of the following wilful violations or omissions: wilfully failed to place, and operate said hoist or mechanical contrivance or scaffold in a safe, suitable and proper manner, and wilfully failed to provide a safe, suitable and proper hoist or mechanical contrivance or scaffold to work on, and wilfully provided an unsafe, unsuitable, and improper hoist or mechanical contrivance or scaffold for the plaintiff to work from, and wilfully placed and operated the hoist or mechanical contrivance or scaffold in an unsafe, unsuitable, and improper manner; and as a direct and proximate result of one or more of such wilful violations or omissions, the plaintiff was caused to fall from the hoist or mechanical contrivance or scaffold to the ground and suffered serious injuries.

The answer of the defendants, John Kubinski & Sons, admitted the plaintiff's work, and that they were engaged as a subcontractor in the removal and destruction of the walls of said building; denied they owned a hoist, but admitted that they owned a certain Drott loader which was being operated by the defendant Anton Brozovich on behalf of the plaintiff, but not on behalf of and in the course of operation or business of John Kubinski & Sons; denied it was used as a hoist or mechanical contrivance and that the plaintiff was working thereon; denied that the Structural Work Act, Ch 48 Ill Rev Stats, 1957, pars 60-69, has any application to the facts and circumstances, though admitting it was in effect; and they denied all the allegations as to their alleged duty, violations of duty, direct and proximate result, and injuries.

The defendants-appellants contend that there was a total failure to prove that the defendants wilfully violated or failed to comply with any provisions of the Structural Work Act; the Court should have directed a verdict for these defendants or entered a judgment in their favor notwithstanding the verdict; the defendants did not have charge of the work being performed at the time of the accident; the plaintiff's injuries were not caused by a scaffold, hoist or mechanical contrivance within the meaning of the Structural Work Act, but rather by the work itself; the Drott skid shovel was not a scaffold, hoist, or mechanical contrivance within the Act; there is no proof that a wilful violation of the Act by these defendants proximately caused the plaintiff's injuries; the injuries proximately resulted from an accident caused by the breaking of a pipe joint with a sledge hammer by the plaintiff, the pipe and hammer being owned by his employer; the shovel was not defective in any manner; the shovel was erected and constructed by Drott Manufacturing Co., not by the defendants; and the verdict of not guilty and judgment in favor of the defendant Anton Brozovich, their employee, is res judicata and a complete bar to recovery by the plaintiff against these defendants because the liability of these defendants is based upon the doctrine of respondeat superior.

The plaintiff-appellee's theory is that the verdict of guilty against these defendants is not inconsistent with the verdict of not guilty as to the defendant Brozovich, their employee; the defendants' violation of the Structural Work Act does not follow from or is not based upon the theory of respondeat superior, but rests on their own fault, independent of their servant, in permitting the machine to be used as a lifting platform from which the plaintiff fell; the gist of the action is not a defect in the machine as a debris remover but in its unsafe use as a temporary scaffold, for which purpose it was dangerous; the defendants are liable under this Act because they knew and approved of the practice of lifting men in this loader as a mobile platform, for which it was not safe; whether these defendants furnished an unsafe, unsuitable, and improper scaffold, whether such proximately caused the injuries, and whether the credibility of the plaintiff or other witnesses was affected were all issues for the jury; and there is sufficient competent and credible evidence to support the verdict and there is no reversible error.

It appears from the evidence that the plaintiff, Albert Oldham, was employed on the day in question, July 3, 1958, and prior thereto by William Wolfe, d/b/a Joliet House Wrecking Co., as a laborer. A contract had been entered into between William Wolfe and the defendants, John Kubinski & Sons, on March 7, 1958, whereby these defendants agreed to furnish all equipment and operators to complete the removal of walls and dispose of debris, and level property as per plans and specifications by the City of Joliet, at the Northwest Corner of Joliet and Van Buren Streets, in a substantial and workmanlike manner, for which William Wolfe agreed to pay those defendants $3300. Anton Brozovich was in the employment of the defendants, John Kubinski & Sons, and was operating a Drott loader or shovel in connection with the demolition of the buildings. Leonard Kubinski, a member of the partnership doing business as John Kubinski & Sons, testified that the defendant partnership owned an International 7-D, 14 Crawler tractor with top skid shovel attached to it, and that Anton Brozovich was employed by the defendant partnership, and operated the tractor and bucket or shovel attached thereto. The plaintiff, Albert Oldham, got into the bucket or shovel with a sledge hammer belonging to Mr. Wolfe in order to be raised by Brozovich so that he could break the coupling on a couple of 20'-22' lengths of pipe that were attached to the side of a beam of the building by metal hangers, the right end being loose or unconnected. By being so raised up he could break the coupling and the pipe would fall to the ground. The plaintiff had broken pipe for Mr. Wolfe before. A truck driver for Mr. Wolfe was around to pick up iron, the iron being some of this pipe, to haul to Mr. Wolfe's place. It was Mr. Wolfe's pipe. The bucket of this shovel, with the plaintiff in it, was stopped when it was about 12 feet above the floor. Shortly afterwards the plaintiff struck with the sledge hammer the coupling or joint of two lengths of pipe which were attached to the beam, and after the coupling broke, one length of pipe fell, and simultaneously therewith or shortly thereafter the plaintiff himself fell to the floor and sustained serious injuries. Leonard Kubinski said he did not know whether Brozovich had ever raised Oldham in the bucket before, but he said he knew their men had raised men up in the bucket on this and other machines before.

This Drott loader shovel was attached to the front end of the defendants' International Harvester crawler tractor. On the fore part of the loader is a lift arm bucket or shovel, which is manufactured by the Drott Manufacturing Co. The bucket alone weighs 1,620 pounds. The machine was primarily an excavating, loading, or stock piling machine for moving earth, loose construction material, or any inner type of material. It is used for back filling excavations, and for use during demolition, removing debris, brush, etc., and in breaking concrete, roads, etc., and rough grading. The length of the bucket (from front to back) is between three and four feet, it is eight feet in width (across), and the depth is twenty-six to twenty-eight inches at the sides and front and thirty-six inches in the back, and the bottom of the bucket or shovel has a concave curved surface. There are several photographs of the tractor and loader-shovel in the record.

There were only two persons at the immediate scene of the accident when it occurred, namely, the plaintiff, Albert Oldham, and Anton Brozovich. The latter testified that he was employed by John Kubinski & Sons and was employed by them on this day; that Mr. Wolfe asked if he would take the man (Oldham) up so that he could break the pipe joint with the sledge hammer; he said he would; the plaintiff got in the bucket with a sledge hammer 28"-30" long and 10 lbs. in weight; he took Oldham up 10 or 11 feet; that he had raised Oldham or another man up in the bucket on other days; that when he got the bucket in an upright position he saw the plaintiff move forward and disappear from sight; the loader was then about level with the top of the beam. The beam made a kind of quiver. Later he heard pounding on a joint. He thinks he heard three blows and then the joint broke, which caused the right end of the pipe to teeter down. The right hand end went down, and the other end went up; the plaintiff fell on the other side of the beam; he is not sure whether Oldham fell from the bucket or not. The bucket did not move at any time while it was upraised until he got out to go over and help the plaintiff after the fall. He heard nothing hit the bucket. To his knowledge the pipe did not strike the bucket.

On cross examination of the plaintiff, a foundation was laid to seek to impeach him by statements purportedly made by him on July 23, 1958 at St. Joseph's Hospital in the presence of a court reporter. This court reporter was called as a witness and stated that from her notes the plaintiff admitted that he requested Brozovich to take him up in the high-lift; he was standing partly on the beam and partly on the bucket; he had one leg on the beam and one leg on the high-lift; the hammer jostled the pipe; the pipe hit the high-lift and bounced back up; the pipe did not hit him, but he lost his balance in trying to get away from it, and fell to the floor below. At the trial he did not remember making some of the statements.

The plaintiff testified at the trial that he was employed by William Wolfe and had been so employed for four months as a laborer; he had been lifted by Brozovich in this bucket before on this same job, tearing down the wall, raising him up on the wall, and he got in the bucket on the morning of July 3, 1958; he was acquainted with Brozovich and Brozovich was the operator of the bucket on previous occasions; he'd never spoken to Brozovich; before he got into the bucket he talked with Mr. Wolfe; Mr. Kubinski was not there; when he got into the bucket Brozovich raised him up as high as it would go; he had a sledge hammer belonging to William Wolfe; when he was raised up he tried to break the coupling on the pipe; the pipe was a 6 inch steel pipe with cast iron couplings; he had worked with this type of pipe before; the length of pipe was about 22 feet and it weighed approximately 800 pounds; when he would break the coupling the pipe would be expected to fall to the ground; he was in the center of the bucket, standing up; he said his footing was solid; the bucket was slippery inside and shiny; when the pipe fell one end went first and the other end of it hit the front corner of the bucket on the east side, jarred the bucket, and he fell over backwards and out on the west side. The bottom of the bucket was curved, semicircle; he did not have one foot on the beam at any time; and he did not notice any defects in the structure or condition of the bucket or shovel at the time.

[1-4] The defendants urge that the plaintiff's statement prior to trial that he fell in backing away after the joint was broken is impeaching inasmuch as the plaintiff testified at the trial that one end of the pipe hit the corner of the bucket on the east side, jarred the bucket, and he fell over backwards and out on the west side. Even if that statement were to be considered as contradictory, we cannot say the jury should necessarily have adopted the conclusion of the defendants in this respect. The credibility of a witness, including a party, is for the jury to determine; evidence of prior inconsistent statements of a witness, if inconsistent, does not afford substantive proof of the truth of the facts therein stated, but is admissible to impeach the credibility of the witness; the jury is at liberty to draw an inference that the witness was either mistaken or corrupt in his testimony; prior inconsistent statements do not affect the competency of the testimony of the witness, or render his testimony nugatory: 37 ILP pp 221-222; Cf. Chicago City Ry. Co. v. Tuohy (1902) 196 Ill. 410, 63 N.E. 997, Haskell v. Siegmund et al. (1960) 28 Ill. App.2d 1, 170 N.E.2d 393, Ivy v. Chicago Transit Authority et al. (1959) 23 Ill. App.2d 251, 161 N.E.2d 881.

William Wolfe testified that he was on the premises on the morning of July 3, 1958, but he didn't see the accident; he saw the operator of the machine, Brozovich, but he had no conversation at any time that morning with the operator; he did not ask Brozovich if he would take the man up so that he could ...


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