Appeal from the Municipal Court of Chicago; the Hon. JOSEPH A.
POWER, Judge, presiding. Judgment reversed and cause remanded
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 28, 1962.
Francis Zebell sued Fred Saufnauer, Jr., to recover damages for injuries proximately caused by the alleged negligence of the defendant while plaintiff was painting a downspout on a two-flat building at 2436 North Cicero Avenue, Chicago. Defendant's motions for a directed verdict, for judgment notwithstanding the verdict and in the alternative for a new trial were denied. Defendant appeals from a judgment on a verdict for $5,000.
In November, 1955, Mary Gillette, the owner of the premises, entered into a contract with Saufnauer, the defendant, to install new siding, doors, windows, gutters, downspouts and to repair the back porch. Mrs. Gillette made a separate contract with Alf Hilding Olsen to paint the windows, doors, gutters and downspouts. Olsen, the painting contractor, employed Zebell, the plaintiff, to work for him as a painter, in performance of his contract with the owner. Plaintiff was an employee of Olsen, an independent contractor. Defendant was a separate independent contractor.
Defendant Saufnauer began the performance of his contract with Mrs. Gillette. Inclement weather caused an interruption in the work for several days. Defendant knew that Olsen was to do the painting under a contract with the owner. He did not know when Olsen or his employee would do the paint job. Prior to the interruption defendant installed the downspout on a temporary basis to function until the siding went on, as the siding had to go underneath the gutter and downspout. The downspout was placed against the wall with a metal strap that was sufficient to hold it under normal conditions. Defendant had no knowledge that Olsen or his employee would go to work there before defendant's work had been completed.
Plaintiff, Zebell, 49 years of age, had been a house painter since 1935. On December 1, 1955, he was employed by and under the direction of Olsen to paint at the Gillette house. Plaintiff knew that defendant and his employees had been remodeling the premises, which included removing railings on the rear porch, installing new gutters, a downspout, doors, windows and removing siding. Plaintiff did painting and priming on windows, frames and doors. He testified that then there was a two week interruption because of adverse weather, and that at 8:00 a.m. on December 1, 1955, he returned for the third time and went to work. The weather was "fair." He painted the rear of the building until about 10:30 a.m. During that time neither the defendant nor any of his employees was "on the job." He painted the inside of the gutter on the top of the building at the rear. He climbed to the roof to do that painting by a ladder placed on the rear porch of the second landing. Upon finishing the gutter he started to paint the downspout from the top. He used a four-foot stepladder placed on the second landing. The downspout was about 10 feet long from the porch to the gutter. The contract between Mrs. Gillette and defendant required that the position of the downspout be changed so that instead of running through the floor of the rear porch that it run outside the porch and then bend under in its descent. At the time plaintiff was painting the downspout, its position had been changed. The downspout was not installed to be stationary because it was to be removed again as defendant's work on the siding progressed.
After painting about one-half of the downspout plaintiff got off the stepladder and while standing on the floor of the second landing continued painting. The bucket of paint was on the floor of the porch. Plaintiff had the brush in his left hand. He took the brush full of paint and proceeded to paint the exterior of the downspout. He "leaned" his right hand "gently" against the downspout. He can balance himself "in that fashion." He was "starting to paint the back of the downspout" and as he "rested" himself against "the front part a little bit" the downspout gave way. To the question, "What happened to you?" he answered: "Well, I lost my balance and I fell against the railing of the porch and I fell over." He fell to the sidewalk 10 to 15 feet below. His employer, Olsen drove him in an automobile to a physician's clinic in the vicinity.
Plaintiff knew that defendant had the contract to replace the gutters and downspouts. He knew that defendant had not finished his part of the contract. He knew that the downspout had been moved from its original position and that that type of downspout would normally be secured by a metal strap. He knew that the rear porch had not been completed, that the porch railing was temporary and that the porch itself was incomplete. Olsen, plaintiff's employer, testified that three pieces of the downspout "came down," that he ran to see what happened and saw plaintiff lying on the walk. He did not see plaintiff before he fell. As far as the record shows, plaintiff was the only one present at the time of the occurrence. Olsen testified further that he knew about the condition of the porch at the time; that the porch railing was temporary; that he could tell that by looking at it; and that on construction of a more substantial railing he would and did paint it.
It is obvious that the negligence alleged by plaintiff against the defendant was not proved. Defendant did not negligently erect and install the downspout, negligently fail to fasten and secure the downspout or negligently place the downspout. It was temporarily placed where the defendant wanted it. The downspout was by defendant and his employees designedly left unsecured, inasmuch as that facet of defendant's work was not completed and the downspout was but temporarily attached to the wall of the building for the purpose of accommodating the flow of rain water from the gutter until it would be permanently secured. Defendant exercised due care in the performance of his contract. Neither defendant nor any of his employees was present at the time plaintiff fell and he knew nothing of the occurrence until a time subsequent thereto. Plaintiff knew that the entire premises were in the process of being repaired, and he knew, had he used his faculties, that the downspout was never intended to support the weight of a painter. Plaintiff also knew that when the porch repairs were completed by defendant that plaintiff's employer Olsen would be required under his contract with the owner to paint the porch. Plaintiff testified that he did not know how the downspout was fastened, if at all, to the wall of the building. He did not know the amount of work defendant had left to be done. Plaintiff's statement of claim alleges that the downspout was "caused to and did fall" and that it was "forced to and did become detached and fell to the ground." The evidence shows that it was plaintiff who did these things. He had worked above and around the downspout for two and one-half hours before it fell.
In support of his position plaintiff cites 57 CJS, Master and Servant, § 610; 38 ALR 371; Fetzer v. Noel Construction Company, 175 Ill. App. 401, 403; Variety Mfg. Co. v. Landaker, 129 Ill. App. 630, 633; Ziraldo v. W.J. Lynch Co., 365 Ill. 197, 201, 6 N.E.2d 125; Markus v. Lake County Ready-Mix Co., 6 Ill. App.2d 420, 427, 128 N.E.2d 370; Lisle v. Anderson, 61 Okla. 68, 71, 159 P. 278; Smith v. Brady, 121 NYS 474, 475. In our opinion these authorities are not applicable to the issues in the instant case. In the cited cases the independent contractors and their employees were performing their respective contracts independently and the negligence charged in each case was for causing injury to the plaintiff therein as the result of an affirmative, active or positive act on the part of the defendant. In the Ziraldo case, the court said (201): "One engaged in the construction of a building owes to another not in his employ, engaged in the same work and exercising due care for his own safety, the duty of using reasonable care to avoid injuring him." In the instant case plaintiff and defendant were rightfully on the premises of the owner by virtue of the invitation of Mrs. Gillette. Liability cannot be imposed upon the defendant unless the negligent act charged could have been foreseen or reasonably anticipated. The plaintiff knew that defendant was still working on his part of the job and that the premises were still being repaired. In 35 Am Jur, Par 187, page 615, the author says: "The rule requiring the employer to make safe the place where his employees are at work is said to be subject to an exception where the conditions of the place are constantly changing as the work progresses, as where a building is in course of being constructed or demolished." See also Payne v. Baltimore & O.R. Co., 351 Ill. App. 186, 114 N.E.2d 323; Piepho Loan & Trust Co. v. Merchants Loan & Trust Co., 168 Ill. App. 511, 517; 31 ALR2d page 1381; Employers M.L.I. Co. of Wisconsin v. DiCesare & M.C.C. Corp., 194 NYS2d 103, 107.
The downspout that became detached was at the time but temporarily installed before the completion of the repairs contracted for by defendant. The downspout was never intended, even when permanently affixed to the building, to support the weight of a person while painting or otherwise. It remained attached to the wall of the building from the time the employees of defendant placed it there until it was forced therefrom by the plaintiff. The amount of pressure applied by plaintiff to wrest the downspout from its position is unknown, but it was sufficient to break the railing of the porch as plaintiff lost his balance. The evidence shows that defendant performed his contract with Mrs. Gillette in a workmanlike manner.
For these reasons the judgment is reversed and the cause remanded with directions to enter judgment notwithstanding the verdict for the defendant, Fred Saufnauer, and against plaintiff.
Judgment reversed and cause remanded with ...