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Burger v. Van Severen

FEBRUARY 19, 1963.

JOHN BURGER, PLAINTIFF-APPELLANT,

v.

HENRY VAN SEVEREN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Rock Island County; the Hon. A.J. SCHEINEMAN, Judge, presiding. Reversed and remanded. WRIGHT, P.J.

The plaintiff, John Burger, brought this action in the Circuit Court of Rock Island County under the Illinois Structural Work Act (Ill Rev Stats 1961, c 48, § 60) to recover damages for injuries which he received when the scaffold upon which he was working collapsed. Plaintiff filed suit against the defendant, Henry Van Severen, who had erected the scaffold, and against the general contractor, Rock Island Lumber Company. The Rock Island Lumber Company prior to the trial paid the plaintiff $11,000 in consideration of a covenant not to sue and was dismissed as a party defendant.

The case was tried against the defendant, Henry Van Severen, and the jury returned a verdict for the plaintiff but awarded no damages.

Plaintiff's and defendant's post trial motions were overruled and judgment was entered upon said verdict, from which judgment plaintiff appeals.

The Rock Island Lumber Company had executed a contract with Mr. and Mrs. Hal Scarsdale to put new shingles and a new gutter on their two story frame house in Milan, Illinois. The Lumber Company sublet the gutter work to the plaintiff and sublet the shingling to the defendant. The defendant commenced work on April 13, 1960, and in order to lay the shingles on the roof he erected a scaffold. The scaffold was constructed by means of four iron brackets, or A-frames, nailed to the east side of the house approximately 9 feet apart and over 16 feet above the ground. After the brackets, or A-frames were nailed to the side of the house, planking was laid across the brackets. The defendant furnished the scaffold and he and his father erected it. The plaintiff was not present when the scaffold was erected.

On the afternoon of April 12, 1960, the plaintiff went to the Scarsdale residence to see how far the defendant had progressed with his work and whether the plaintiff could use defendant's scaffold in doing his guttering work. The defendant was on the scaffold and there was a conversation between the plaintiff and defendant as to the former's use of the scaffold. According to the testimony of the plaintiff, defendant informed him that it would be permissible for him to use the scaffold if he started early the next morning. This conversation was corroborated, in part, by the owner of the property, Mr. Hal Scarsdale and denied by the defendant who testified that the plaintiff did not ask permission to use the scaffold. In any event, the plaintiff and his helper, James Winter, arrived at the Scarsdale residence at approximately 8:00 o'clock a.m. on April 13, 1960, and used the defendant's scaffold to install a section of gutter approximately 20 feet long at the north portion of the east side of the house. After placing this section of guttering in place, they went to the ground and returned to the scaffold with a section of gutter approximately 16 feet long. Plaintiff went to the south end of the scaffold and stood immediately above the southernmost A-frame, holding the south end of the 16 feet section of gutter and using a level to adjust the gutter so it would drain properly to the south. The southernmost bracket of the scaffold pulled loose without any warning and the bracket, scaffold planking and the plaintiff fell over 16 feet to the ground. The plaintiff landed upon a large 8 x 8 railroad tie and was severely injured. The evidence as to how the scaffold was constructed and attached to the building is conflicting.

The plaintiff first contends that the trial court, over objection of plaintiff, erred in advising the jurors that the defendant, Rock Island Lumber Co., had been dismissed out of the case and was paying the plaintiff $11,000 for a covenant not to sue and in permitting defense counsel to argue this matter to the jury and produce evidence of the payment.

The trial Judge on voir dire examination, over objection of the plaintiff, told the jurors that the defendant, Rock Island Lumber Co., is not going to appear and that it would be brought out during the course of the trial that they have made a settlement with the plaintiff.

The defendant called the plaintiff as an adverse witness and questioned him concerning the covenant not to sue, which testimony was as follows:

"Q. Mr. Burger, when you commenced this law suit you had also sued Rock Island Lumber Company?

A. Yes, I did.

Q. And on the basis that you felt that they were legally liable to you under the facts and circumstances of your injury?

A. Yes, I did.

Q. I will ask you if at the commencement of this trial —

By Mr. Eagle: (Interrupting) I would like the record just to show an objection to this line of questions, ...


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