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Garrett v. S.n. Nielsen Co.

JUNE 8, 1964.

LEONARD GARRETT, PLAINTIFF-APPELLEE,

v.

S.N. NIELSEN COMPANY, A CORPORATION, DEFENDANT AND COUNTERCLAIMANT-APPELLANT,

v.

GATEWAY ERECTORS, INC., A CORPORATION, DEFENDANT AND COUNTERDEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a personal injury action, in which the jury returned a $75,000 verdict against defendant S.N. Nielsen Company, and a not guilty verdict for defendant Gateway Erectors, Inc. Nielsen's counterclaim against Gateway had been severed from the trial of plaintiff's case, and on the basis of the jury verdict in plaintiff's case, the trial court entered findings of fact and judgment in favor of Gateway. Defendant Nielsen appeals from both judgments.

As to plaintiff's case, defendant Nielsen requests that it be granted judgment notwithstanding the verdict, arguing "there was no basis on which the jury could have found this defendant liable," or that it be granted a new trial because of prejudicial trial errors. In the alternative, Nielsen requests that the judgment on the counterclaim be vacated, and that "judgment be entered in favor of this defendant on the counterclaim in the amount of the plaintiff's judgment against this defendant." There are no cross-appeals and no contention of contributory negligence of plaintiff.

Plaintiff, Leonard Garrett, was injured on November 28, 1960, when a piece of shoring, known as a "New York shore," fell from the sixth floor of a building under construction and struck him while he was engaged in laying pipe in a trench alongside the building. The "New York shore" provides the bracing or support for the "U"-shaped plywood shell or trough-like forms into which steel and concrete are placed and poured to make reinforced concrete beams. The bottom of the plywood form is called a "beam bottom," and the two sides are called "beam sides." The shores are "T"-shaped, made of wood, and placed at 2-foot intervals under and supporting the "beam bottoms." Each shore has a vertical 4 x 4, topped with a horizontal 4 x 4 bar, and a 2 x 6 entending on an angle from the vertical 4 x 4 to the horizontal 4 x 4 crosspiece. It was estimated that the shore weighed about 75 pounds.

Plaintiff, then thirty-three, was an employee of the M.J. Corboy Corporation, one of the subcontractors employed in the construction of a series of seven buildings, known as the Henry Horner Project, in Chicago, Illinois. Defendant Nielsen was the general contractor on the project, and its carpenter employees had previously installed the shoring that fell. Defendant Gateway Erectors, Inc., was a subcontractor "for certain ironwork to be performed on the job site."

The testimony regarding plaintiff's injuries is uncontradicted, and no point is made on appeal that the award of damages is excessive. Plaintiff was in good health prior to injuries. At the time of trial, his life expectancy was 32.3 years. Plaintiff sustained permanent "compression-type" fractures of the cervical vertebrae and a skull fracture. This resulted in constant headaches and dizziness, which prevent plaintiff from bending, driving vehicles, and other activities, including heavy work, which were the type plaintiff had been trained to perform. A specialist testified that the persistence of plaintiff's condition indicated that it probably would be permanent.

[1-3] Initially, we consider defendant Nielsen's contention that "in the absence of any probative evidence tending to establish that this defendant was negligent and that such negligence was a cause of the plaintiff's accident, the trial court should have directed a verdict." Defendant's motion for a directed verdict at the close of all the evidence presented the single question whether there was, in the record, any evidence which, standing alone and taken with all its intendments most favorable to plaintiff, tended to prove the material elements of his case. Evidence favorable to plaintiff's case was all that could be considered by the trial court in this inquiry. If there was a total failure to prove one or more of the essential elements of the plaintiff's case, specifically, as contended by defendant Nielsen, negligence on its part, the motion should have been allowed. (Moss v. Wagner, 44 Ill. App.2d 180, 194 N.E.2d 481 (1963); Stankowitz v. Goldblatt Bros., Inc., 43 Ill. App.2d 173, 193 N.E.2d 97 (1963).) The court may not consider conflicts in evidence, its weight or preponderance, or the credibility of witnesses, but may consider only that evidence which is most favorable to the party against whom such a motion is directed, together with all reasonable inferences that may be drawn therefrom. Battershell v. Bowman Dairy Co., 37 Ill. App.2d 193, 197, 185 N.E.2d 340 (1962).

Defendant Nielsen asserts that all the testimony as to the negligence of Nielsen represents only "conjecture and surmise," that it is just building "inference upon inference." However, as stated by Mr. Justice Friend in Grand Trunk Western R. Co. v. M.S. Kaplan Co., 43 Ill. App.2d 230, 242, 193 N.E.2d 456 (1963), in discussing the rejection of "sequential inferences" (an inference upon an inference):

"Such a sweeping exclusionary formula is of doubtful analytical value in the decisional process. It serves only as a convenient repository for rejected inferences. . . . The pertinent consideration is whether the inference based on an inference is reasonable."

We believe there is merit in that approach here, and the instant situation calls for the application of the pronouncements in Lavendar v. Kurn, 327 U.S. 645 (1946):

"Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference. Only where there is a complete absence of probative facts to support the conclusion reached does a reversible error appear."

This language was cited with approval by our Supreme Court in Lindroth v. Walgreen Co., 407 Ill. 121, 133, 94 N.E.2d 847 (1950), where the court also stated that "the focal point of judicial review is the reasonableness of the particular inference or conclusion drawn by the jury."

The testimony in the record on the question of defendant's negligence discloses the following: Archie Smith, general superintendent for Nielsen, testified that "the upper portion of this New York shore is affixed to what we call the beam bottom and is nailed to it and also to the inside kicker. We use a couple of nails to attach the shore to the beam bottom. More nails are used to attach the New York shore to the kicker. . . . Across each of the top or horizontal portions of this support, between the cantilever and the existing structure, you have the beam bottom that is put in and spiked with spikes. You would use 16-penny sized nails for that purpose. ...


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