Appeal from the Superior Court of Cook County; the Hon. FRED
W. SLATER, Judge, presiding. Reversed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
This is an appeal from a bench trial in which judgment was entered in favor of plaintiffs for $51,000.
The appeal is based, initially, on the contention that plaintiffs have no cause of action under the Structural Work Act.
Defendant contracted with Kenny Construction Company in July 1958 to do work on the Calumet Intercepting Sewer. On October 18, 1958, Woodrow Green, the putative father of the minor plaintiffs and an employee of Kenny, was working with an air spade (as a clay-cutter) in the vicinity of Doty Road and 130th Street in Chicago on an excavation for a drop manhole. *fn1 Green was killed as the result of a cave-in in the excavation.
The suit was brought by the nominal plaintiff, Odessa Bradley, *fn2 on June 7, 1960, as the mother and next friend of the two minor plaintiffs for whom Green was paying support under a court order in a paternity proceeding which had determined that he was their father.
Plaintiffs' complaint alleged that "supports, protective sheets, stays, coverings, and sidings are required to prevent soft mud, earth, clay from falling below upon workers in the shaft-pit"; that defendant had a legal duty to comply with the "Scaffold Act" and that defendant knowingly or wilfully violated and disregarded said Act by reason of which Green was injured and died.
The cause of action in the instant case was not based on negligence in failing to provide a safe place to work, nor was it a claim under the Workmen's Compensation Act which includes "excavating work" as an extra-hazardous vocation. The complaint clearly and precisely based liability on the Structural Work Act. (Ill. Rev Stats 1957, c 48, § 60 et seq.)
Defendant argues that the Act applies only to aerial structures and those passing under or by them, that an excavation for a drop manhole does not fall within the ambit of the Act. Since there is no decision in Illinois construing the applicability of the Structural Work Act to underground work, plaintiffs urge that we look to New York for guidance because of similarities in its scaffold legislation.
Plaintiffs reason that a manhole is a structure within the Act because a New York court in 1913 held a concrete sewer to be a structure within its Labor Law Act of 1908. Armenti v. Brooklyn Union Gas Co., 142 NYS 420. That New York statute protected employees and others who were directed to perform labor on structures from unsafe scaffolds and other contrivances. It is clearly distinguishable from the Illinois Structural Work Act whose purpose is to protect persons working on scaffolds as well as those passing under or by them and to do so "in such manner as to prevent the falling of any material that may be used or deposited thereon." In the Armenti case the plaintiff was one of a "concrete gang" whose duty it was to prepare and lay concrete to build a large sewer; *fn3 the "carpenter gang" built the supports for the excavation. The court found that the supports were installed negligently and did not provide proper protection to the employee. This is hardly comparable to the instant case where a drop manhole (12 feet by 7 feet) was being excavated and no supports were used.
Plaintiffs then ask that we consider the present New York Labor Law section 240 which provides that employers or others who direct the performance of labor on structures "shall furnish or erect, or cause to be furnished or erected" scaffolds and other devices to properly protect the person employed or directed. Section 60 of the Illinois Structural Work Act only provides for protection when a scaffold or other contrivance is "erected or constructed." We cannot consider the mandatory requisites of the New York law in construing the provisions of the Illinois statute which apply only when a scaffold is used.
Let us examine the Illinois Structural Work Act as it applies to the facts of the instant case.
Section 60 defines the standards for mechanical contrivances that are "erected or constructed" for use in activities encompassed by the Act. It does not prescribe standards to determine when such contrivances must be used. This is illustrated by the language: (1) "All scaffolds . . . or other mechanical contrivances erected or constructed . . ." and (2) the requirement that a safety rail for a scaffold "swung or suspended from an overhead support. . . ." (Emphasis supplied.) In the instant case there was no scaffold, support or other mechanical contrivance. Even if the excavated hole was considered a "structure" within the meaning of the Structural Work Act, there was no violation of any of the protective measures provided for in the statute.
From section 60 of the statute it would appear that its purpose is to give protection to persons employed on scaffolds or mechanical contrivances or passing under or by the same. The purpose may also be gleaned from other sections. Section 64 pertains to scaffolds on special types of structures such as water pipes, tanks and chimneys; it sets out requirements for a support or other suitable device below a scaffold to prevent injuries in the case of accidents to the working scaffold. The language of that section does not require that scaffolding be used on these projects; it merely requires that a safe subscaffolding be used if scaffolding in fact is utilized. Section 65 relates to flooring and beams and section 66 to elevating machines.
[2-5] In construing section 60, we are assisted by the reasoning in Thon v. Johnson, 30 Ill. App.2d 317, 174 N.E.2d 400, in which the court held that a cement form upon which plaintiff stood was not a scaffold ...