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Brackett v. Osborne

DECEMBER 17, 1963.

CHARLES K. BRACKETT, PLAINTIFF-APPELLEE,

v.

BERNICE E. OSBORNE, DEFENDANT-APPELLANT.



Appeal from the City Court of Elgin, Kane County; the Hon. DAN B. WITHERS, JR., Judge, presiding. Affirmed.

CROW, P.J.

The defendant, Bernice E. Osborne, appeals from a judgment entered in the City Court of Elgin, in the amount of $15,000, on the verdict of a jury in favor of the plaintiff, Charles K. Brackett, in an action to recover damages for personal injuries allegedly caused by the defendant's negligence on June 23, 1961 in backing her automobile into a scaffold from which the plaintiff and another employee were painting the defendant's parents' home, causing the scaffold to tip and the plaintiff to fall to the ground. The defendant's post trial motion for judgment notwithstanding the verdict, or a new trial was denied, and a judgment entered on the verdict. Motions by the defendant for directed verdict at the close of the plaintiff's evidence and of all the evidence had been denied.

It is alleged in the complaint that on June 23, 1961, the plaintiff was painting a house, located at 329 North Worth Avenue, in Elgin, where the defendant resided; the plaintiff was exercising due care for his own safety; the plaintiff was standing upon a scaffold supported by two ladders; the defendant owed a duty to the plaintiff to exercise due care so as not to injure him; the defendant knew or should have known of the location of the ladders and the plaintiff's presence thereon; the defendant negligently backed her automobile on said premises, without keeping a proper lookout, so as to collide with one or both ladders supporting the scaffold, causing the scaffold to collapse, and throwing the plaintiff to a cement patio, injuring him as a direct and proximate result. The answer of the defendant, as amended, denied the allegations of her negligence, the plaintiff's due care, and that the injuries were a proximate result of her negligence, and further said that the plaintiff knowingly erected or assisted to erect the ladder or scaffold in an unsafe, unsuitable and improper manner. The plaintiff's reply denied the affirmative allegations of the answer, as amended, and denied the Illinois Scaffolding Act has any application.

The defendant's theory is that the Illinois Scaffolding Act, or Structural Work Act, Ch 48 Ill Rev Stats 1961, par 60 ff., creates a new duty for persons erecting a scaffold and required the plaintiff to erect the scaffold in a safe, suitable and proper place and manner, and if the plaintiff failed to erect the scaffold in a safe, suitable and proper place and manner, the plaintiff was guilty of wilful and wanton misconduct, as a matter of law, and cannot recover from the defendant on a complaint alleging only negligence. It is urged by the defendant, based on that theory, that the Trial Court erred in giving a certain instruction tendered by the plaintiff (plaintiff's instruction 7) and in refusing certain instructions (defendant's instruction 12, and alternative instructions 14a, or b, or c) and in refusing both of two alternative special interrogatories tendered by the defendant. And the defendant argues that the verdict is against the manifest weight of the evidence, and that the Trial Court should have directed a verdict for the defendant or granted a new trial. Although it is not a part of her theory of the case, one of the defendant's points also is the Court abused its discretion in excluding certain photographs, her offered exhibits 1-6, offered as evidence by her.

The plaintiff's theory is that this is an ordinary common law action, and the Illinois Scaffolding Act, or Structural Work Act, has no application; the ordinary rules of negligence on the part of the defendant and freedom from contributory negligence on the part of the plaintiff apply; the Trial Court did not err in refusing instructions and special interrogatories tendered by the defendant which were based on the Scaffolding Act, or Structural Work Act, or in giving the instruction complained of which was tendered by the plaintiff; there was no error in refusing to admit the defendant's posed photographs in evidence; and the questions of negligence and due care were for the jury and there was no error in refusing to direct a verdict or grant a new trial.

The evidence is substantially as follows: the plaintiff and a fellow employee, Gust Rosenquist, painters, were employed by the C.E. Jakes Painting Company, which was painting the house owned by and where the defendant's parents resided, in Elgin. The defendant and her husband resided there with her parents. On June 23, 1961, and for some days prior thereto, the plaintiff and his fellow employee were and had been painting this residence, at the direction of the C.E. Jakes Painting Company. The defendant knew this, had observed their progress, and saw them on the particular day in question. The house being painted is located on the east side of a north-south street, facing west. A driveway about 8' wide extends easterly along the north side of the house to a two car garage located at the rear or east end of the premises. The drive widens out to the rear of the house to afford access to the two car garage. There is a rear sidewalk a few feet back of the house extending south from the driveway to rear steps leading up to the rear entrance. That walk extends into a concrete patio at the rear and across part of the rear of the house. There is a hedge along the north edge of the driveway, which was rather high and bushy at the time. The south edge of the driveway is close to the house. There is just enough room for an auto to travel without scraping the house. There was a rather large lilac bush at the northeast corner of the rear of the house, which was in foliage at the time. The driveway makes a moderate southeast angular turn beginning about the rear walk and extending to the garage.

On the day in question the defendant had earlier driven away from the house and at that time the painters were painting the south side of the house. The defendant then returned at noon. The driveway at that time was clear of any scaffolds or ladders. The defendant parked her car on the drive at the rear. Its rear bumper was, according to the defendant, possibly on a line somewhere between the east side of the house and the rear sidewalk, though its exact position on the drive longitudinally (east-west) and laterally (north-south) is somewhat uncertain. The defendant said her recollection of where she stopped is based on what she customarily did, and customarily she stopped so she could get out right by the rear sidewalk. She did not know how close it was to the north or south sides of the driveway. The plaintiff said it was east and to the north of the rear sidewalk. Mr. Rosenquist said it was about two feet north of the sidewalk (not right at the south edge of the driveway). She went in the house by the rear door. Her car was parked on a slight angle towards the southeast.

After lunch the painters put up a scaffold by placing two six foot ladders with a plank across and between them which extended north and south along a part of the back or east side of the house in the area of the rear door and at the northeast corner of the rear of the house. The south ladder was sitting on the cement patio. The north ladder was pushed as far into the lilac bush at that point as it could be and was partly covered by the bush though the plaintiff says all of that ladder could be seen. The plank was laid on steps of the supporting ladders behind the bush, between the bush and the house. The bottom of the legs of the north ladder extended from six inches to less than twelve inches onto the driveway. Mr. Rosenquist said the reason it was partly on the drive was that the lilac bush was in the way. The north ladder legs were about three or four feet or so from or west of the rear bumper of the defendant's automobile. Before mounting the scaffold the plaintiff inspected both ladders and saw that the north legs of the north ladder extended 6 inches onto the driveway. The ladders and plank were in good shape. There had been no difficulty with them prior to the accident.

While the defendant was in the house, and after their lunch hour, the plaintiff and Rosenquist commenced to paint from the scaffold. The defendant thereafter attempted to leave the house by way of the back door but observed the scaffold plank extending across the back door blocking that exit. She observed the plaintiff and Rosenquist on the plank, above ground level. She knew where the scaffold was. She did not see the ladders. She commented "Well, I guess I'll have to go out the other way, I can't get out here." She said she did not before the accident see the north ladder or that the bottom legs extended onto the driveway. She did not know the north end of the scaffold was supported by a ladder. She did not look to see if there was a north ladder or if its legs were on the driveway.

She left the house by a side door on the north side, got in her car, and backed it two or three feet, or so, when the right rear bumper struck or scraped the north ladder supporting the scaffold. She stopped. The ladder tipped against the east side of the house, the plank shimmied or tipped, and the plaintiff fell from the scaffold to the east to the cement patio extension of the rear walk and injured his right foot. The ladder was not broken. The plaintiff had placed no barricades across the driveway or made any other effort to warn the defendant that the bottom legs of the north ladder extended partly onto the driveway. She gave no warning she was backing her car. There was room to back without striking the ladder.

The plaintiff and Rosenquist testified that when the defendant left the house to get in her car to back out she first stopped at the northeast corner of the house to talk with them a few minutes and that she was within a foot of the north ladder and looking right at it. She did not remember talking with them, — though she said she might have passed the time of day, — and said she'd walked directly down the drive on the left side of her car and got in.

While backing she looked to the left rear along the north edge of the driveway out the driver's window. From there she did not see the ladder legs extending onto the drive on the south edge.

The defendant made an offer of proof that during the trial she had attempted to recreate the physical conditions as they were at the time of the accident, and had taken certain photographs thereof, defendant's exhibits 1-6, for identification, which she offered in evidence. They indicated, in different views, the defendant's car parked on the rear drive, a stepladder near the northeast corner of the house, some of the area in which the accident took place, and views to the left rear from the driver's window of her car. The Court sustained objections to this offer and to the offered exhibits. Two other photographs by the defendant, her exhibits 7 and 8, of the general scene of the accident, taken shortly afterwards, were admitted in evidence.

The plaintiff's given instruction No. 7 of which the defendant complains was:

"The Plaintiff has the burden of proving each of the ...


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