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Witt v. John Hennes Trucking Co.

MAY 25, 1964.

MELVIN E. WITT, PLAINTIFF-APPELLANT,

v.

JOHN HENNES TRUCKING COMPANY, DEFENDANT-APPELLEE. JOHN HENNES TRUCKING COMPANY, THIRD PARTY PLAINTIFF,

v.

CORBETTA CONSTRUCTION COMPANY, THIRD PARTY DEFENDANT.



Appeal from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Order and judgment affirmed.

MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

This is an action to recover damages for negligence. Defendant filed a third-party complaint naming plaintiff's employer as third-party defendant. The case went to trial on plaintiff's original complaint and at the close of all the evidence plaintiff asked leave to file an amendment alleging a violation of the Structural Work Act, which the court denied. The cause was then submitted to the jury and it failed to reach a verdict. After allowing a mistrial, the trial judge sustained defendant's motion for judgment in its favor and against plaintiff, and also dismissed the third-party complaint. This appeal followed.

Plaintiff was injured while employed as a carpenter by the Corbetta Construction Company. Corbetta was in the process of erecting precast warehouses at the Great Lakes Naval Station. Corbetta leased a crane from the defendant for use in the project. The crane was brought to the site by a crane operator about six weeks before the occurrence. Some wooden block supports were on the frame of the crane when it arrived along with other equipment for it. The wooden block supports were 12 x 12 or 14 x 14 inches and between 20 and 24 inches long. Blocks were placed under outriggers which extended from the sides of the crane and were positioned to support the crane when in use. Wedges were used to fill in whatever space there might be between the outriggers and the supporting blocks so that the crane stood rigid.

A crane operator always went with the units that defendant leased out. Leon Fraker was the operator sent with the crane here involved. His wages were paid by defendant. Defendant made his social security payments and paid the withholding tax on his wages. At the end of each month Corbetta compiled a summary of his hours' work and forwarded it to the defendant. Corbetta paid defendant a fixed per hour rate and defendant in turn paid Fraker that amount. The hour's rate was part of the rental payment for the crane's use. Corbetta, if not satisfied with Fraker, could have discharged him.

The crane was used to place slabs of concrete into position. These slabs or panels were precast and composed the outside walls of the warehouses. Their sizes varied. The section involved in the accident was 12 feet high and 20 or 22 feet in length. It was 6 or 8 inches thick and weighed about 15 tons. The panel had hooks protruding from the top at each end. A cable sling ran through these hooks and connected with an I beam about 20 feet in length, about the same length as the panel. This I beam was suspended from two other cables which attached onto the hook on the boom of the crane. The distance between the I beam and the top of the concrete panel was approximately 10 feet. The panel was to be placed upon a concrete footing which was 3 feet above the ground. It would then be fastened to concrete column uprights. Plaintiff's job was to fasten the ends of the panel somewhere to these columns so that at least temporarily it would not fall out. Corbetta was the general contractor on the job, planned and laid out the moving of the crane into position in advance by means of a model. The crane was driven to this predetermined position by an oiler employed by Corbetta. Ironworkers also employed by Corbetta would then spot the crane into this position and the ironworker foreman would check to see that the rigging of the blocks was safe. The crane was repositioned in this manner two to nine times a day. The ironworkers would block the crane placing the blocks under each corner of the crane. As this panel was being moved into position, plaintiff was working on the top of a 20-foot-high scaffold. A co-worker worked at the other end of the panel on another scaffold. As soon as the panel was in place plaintiff was to go down to the next level of the scaffold and make a tie or temporary connection about 12 inches from the panel top. He would then work down, making two or three such ties, hooking the panel up with the balance of the wall. The practice was to hold the panel with the boom until it was temporarily tied. At the time of the occurrence, the crane operator was moving the 15-ton concrete slab one or two feet in front of the scaffold upon which plaintiff was working. The panel was between the scaffold and the building wall which was being erected. It was to rest upon the footing that was three feet above the ground. At the time the panel was six to eight inches from the top of the footing, it came down, missing the footing and crashing to the ground in front of the scaffold upon which plaintiff was working. When the panel came down the I beam was two or three feet above plaintiff's head. At the same time that plaintiff heard the crash, something hit him on the left side of the head and knocked him off the scaffold. He landed sideways, wedged in between the bracing on the scaffold and the panel. It was discovered that one of the supporting blocks for the crane had splintered or cracked and the right front side of the crane was tilted.

The errors charged in the appeal are that the evidence shows the crane was not being operated safely and that it was not safe for operation. Nowhere in plaintiff's brief does he indicate or contend that there was evidence that Fraker was negligent in the operation of the crane. Plaintiff says defendant was negligent in not exercising reasonable care commensurate with the type of chattel it leased to Corbetta.

Plaintiff quotes from Restatement of Law of Torts (1934), Vol 2, Sec 408 wherein it provides:

"One who leases a chattel as safe for immediate use is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such uses or to disclose its actual condition to those who may be expected to use it."

"Comment:

(a) When lessor must inspect. The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee. . . . The minuteness of the inspection required varies with the danger which will be likely to result if the chattel is defective. . . ."

So, plaintiff charges that defendant failed to exercise reasonable care commensurate with the type of chattel involved and that this is evidenced by the fact that the wood block support for the crane cracked and crushed and the crane tilted causing plaintiff's injuries. He takes the position that the supports for the crane must be considered every bit as much a part of the crane equipment as the boom itself; that they came as part of the crane equipment when it arrived on the job site. The operator furnished by the defendant to operate the crane had the duty to see that it was operated safely.

Defendant agrees that the lessor has a duty to use reasonable care to see that the machinery is not in defective condition as set forth in the Restatement of the Law of Torts. But, it argues, while the law imposes a duty it must be established by competent evidence that there was a breach of that duty to create liability. In order for the plaintiff to establish a good cause of action in this regard and warrant the submission of the case to the jury, he was obligated to establish that:

1. Defendant supplied the particular block that broke;

2. a defective condition existed in the block at the time ...


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