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Miller v. Dewitt

APRIL 26, 1965.










Appeal from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding. Affirmed.


Rehearing denied July 1, 1965.

This action was brought by three employees, Harold A. Miller, Ellis Furry, and Donald E. Engel, of a contractor, Fisher-Stoune, Inc., against the architects, Lyle V. DeWitt and Russell M. Amdal, d/b/a DeWitt-Amdal & Associates, and against the owner, Maroa Community Unit School District No. 2, for injuries sustained as the result of the collapse of a roof of a school gymnasium building during remodeling operations by the contractor. The jury returned verdicts in favor of the plaintiff Miller for $30,000, Furry for $90,000, and Engel for $5,000, against the defendants architects under both the negligence and Structural Work Act counts, upon which the court entered judgments, and from which this appeal is taken by the defendants architects, Lyle V. DeWitt and Russell M. Amdal. The jury returned a verdict for the defendant School District and against the plaintiffs, upon which a judgment was entered, and the plaintiffs cross appeal from that. Also, the court, on motion, before trial, dismissed a third-party complaint filed by the defendants architects against the contractor, Fisher-Stoune, Inc., and entered a judgment in bar of that action, and from that judgment this appeal is likewise taken by the defendants architects. The defendants architects' motions for directed verdicts, and to withdraw the charges of negligence in Counts I, II, and III, at the close of the plaintiffs' evidence and all of the evidence had been denied, and the defendant School District's motions for directed verdict had been denied. And the defendants' architects' post trial motion was denied as well as the plaintiffs' post trial motion.

The plaintiffs' actions were predicated on charges against the defendants architects of negligence and of violation of the Structural Work Act, and against the defendant School District of violation of the Structural Work Act. The complaint was in six Counts, Counts I, II, and III by each respective plaintiff, Miller, Furry, and Engel, against only the defendants architects, DeWitt-Amdal, and Counts IV, V, and VI by each respective plaintiff against the defendant School District and the defendants architects. Count I alleged, in substance, that the transaction occurred in Maroa on May 3, 1960; the defendant School District had begun extensive remodeling of the gymnasium attached to the high school; the defendant School District had contracted with and retained the defendants architects to do the necessary architectural work and to supervise the construction; the defendant School District had contracted with Fisher-Stoune, Inc., general contractors, to do the work involved in remodeling under the direction and supervision of the defendants architects; the plaintiffs were employed by Fisher-Stoune, Inc., and were engaged in removing certain structural steel members supporting the roof; Fisher-Stoune, Inc., under the direction and supervision of the defendants architects had undertaken to support the roof by tubular steel scaffolding; while the plaintiffs were engaged in removing certain supporting beams the tubular steel scaffolding gave way and collapsed under the weight of the roof, causing a portion on which the plaintiffs were working to fall; as a direct and proximate result of the collapse the plaintiffs received personal injuries; the collapse of the roof and the plaintiffs' injuries were the direct and proximate result of one or more of the following negligent acts or omissions of the defendants architects:

(a) Negligently and carelessly failed to provide for adequate support for the roof of said gymnasium prior to having the structural supports therefor removed;

(b) Negligently and carelessly failed to calculate a sufficient safety factor to be used in the scaffolding under said roof;

(c) Negligently and carelessly failed to oversee and inspect the scaffolding as used to determine whether or not it was safe to use;

(d) Otherwise negligently and carelessly failed to apply to the work aforesaid the degree of skill which would customarily be brought to such work by competent architects in and about this community;

the plaintiffs were in the exercise of due care for their own safety; in the collapse the plaintiff Miller received serious permanent injuries. Counts II and III were similar. Count IV alleged, in substance, in addition to realleging parts of Count I, that the defendants each violated c 48, Ill. Rev Stats 1959, § 60, which was a direct and proximate cause of the collapse of the roof and the injuries occasioned; and by c 48, Ill. Rev Stats 1959, § 69, a cause of action has accrued to the plaintiffs for damages. Counts V and VI were similar.

The answer of the defendants architects, in substance, admitted that the defendant School District had contracted with and retained them to do the necessary architectural work on the remodeling and to provide architectural supervision during the construction, the defendant School District had contracted with Fisher-Stoune, Inc., to do the work involved in the remodeling under the architectural direction and supervision of the architects, Fisher-Stoune, Inc., had undertaken to support the roof by tubular steel scaffolding, while the plaintiffs were removing certain supporting beams the roof collapsed, and as the direct and proximate result of such collapse the plaintiffs sustained personal injuries, and denied all the other allegations, including the applicability or violation of the Structural Work Act.

The answer of the defendant School District to Counts, IV, V, and VI, in substance, admits certain allegations, including that Fisher-Stoune, Inc., had undertaken to support the roof by tubular steel construction, and while the plaintiffs were removing certain supporting beams the roof collapsed, and denies the remaining allegations, and says that it is not an owner, contractor, or other person or firm as contemplated by the Structural Work Act and no liability attaches to it by virtue thereof or at common law.

The amended third-party complaint by the defendants architects against Fisher-Stoune, Inc., made the plaintiffs' complaint and their answer thereto parts thereof, and, in substance, alleged that as architects, their responsibility consisted of drafting plans and specifications and such supervision of the actual construction as would assure that the contractor complied with the plans and specifications, but they had no right or duty to direct or in any manner control the method or means by which the contractor accomplished the results called for by the plans and specifications; Fisher-Stoune, Inc., had sole responsibility for the means and method of accomplishing the results called for by the plans and specifications; the designing, construction and placing of the temporary supports and the manner and method of removal of the permanent supports were solely under the control of Fisher-Stoune, Inc., and not the architect; these temporary supports did not come within the purview of the Structural Work Act, nor did the Act apply to the third-party plaintiff; if any liability is imposed on the third-party plaintiffs under Counts I, II, and III of the complaint their negligence, if any, is passive, the active negligence being solely that of Fisher-Stoune, Inc.; if any liability is imposed on the third-party plaintiffs by Counts IV, V, and VI of the complaint, it is a liability imposed by law without fault on their part, the person having actual charge of the work being Fisher-Stoune, Inc.; if there is any liability imposed on the third-party plaintiffs they have a cause of action over against Fisher-Stoune, Inc., for indemnity; they were in the exercise of due care; Fisher-Stoune, Inc., was negligent in certain respects, which proximately caused the injuries and damages set forth in the complaint; and as a direct and proximate result of such neligence the roof collapsed, thereby proximately causing the plaintiffs' injuries.

The motion of Fisher-Stoune, Inc., to dismiss the amended third-party complaint urges, as grounds, in substance, that it does not state a cause of action; the original complaint charges the defendants architects with primary active negligence and one so charged is not entitled to indemnity from another alleged tort-feasor; the Structural Work Act is inapplicable, there is no derivative liability, if the defendants architects and Fisher-Stoune, Inc., were co-tort-feasors section 25 of the Civil Practice Act precludes a third-party action for contribution among alleged tort-feasors; certain portions are conclusions; a certain part contains more than one allegation; it is an attempt to do indirectly what cannot be done directly, in that if it is not dismissed the plaintiffs employees will be given an opportunity to seek damages from their employer, Fisher-Stoune, Inc., which exceed their workmen's compensation benefits; if the defendants architects were actively negligent they are not entitled to contribution from an alleged co-tort-feasor, and if they were passively negligent or not negligent at all they are not liable to the plaintiffs and have no cause of action for indemnity.

Some time prior to April 14, 1959, Maroa Community Unit School District No. 2, which is governed by a board, decided to remodel and enlarge the gymnasium at the high school and contracted with Lyle V. DeWitt and Russell M. Amdal, d/b/a DeWitt-Amdal & Associates, architects, for architectural services in connection therewith, that contract being prepared by the architects. Pursuant thereto, DeWitt's organization prepared the necessary plans, specifications and proposed building contracts, and after the same were approved by the School District, caused bids to be received which resulted in the letting of three contracts by the School District: one to Fisher-Stoune, Inc., for the general construction work; one to Burdick Plumbing Co. for the plumbing and heating; and one to Heise Electrical Co. for the electrical work. The work proceeded under the three contracts while the school remained in session.

The plans for the remodeling called for the removal of the west wall of the gymnasium; the removal of a north-south proscenium truss from that point (the old west wall) to the new west wall of the new gymnasium; the removal of two steel columns in the old west wall, which, together with the proscenium truss, originally supported the west ends of four east-west roof trusses; the substitution where the old west wall and proscenium truss were of a new north-south main-bearing truss into which would be fastened the west ends of the old roof trusses and the east ends of the trusses in the new structure. The defendants architects say that the plans showed the reaction (weight or load bearing) at each end of the new north-south main-bearing truss, which would be the total weight to be supported by that new truss upon completion of the new and remodelled building. This weight was the total weight of the new roof and the old roof, including both the dead load (weight of the structure itself) and the live load (snow, gymnasium equipment attached to the roof, impact from the use of such equipment, etc.). There was evidence that the weight of the new roof could be computed from the information shown on the plans. There was some evidence the weight of the old roof could be obtained therefrom too, by a series of computations, but there was some evidence such could not be ascertained therefrom. In any event, the plans did not specifically indicate the weight of the old roof and east-west trusses which was to be temporarily supported by temporary scaffolding after the north-south proscenium truss was removed and pending installation of the new north-south main bearing truss. Nor was the composition of the old roof given on the plans. The plans did contain certain drawings that the roof, or a part thereof (meaning, the defendants architects said, a new or fill-in portion of roof) was lightweight aggregate concrete.

In April 1960, Byron Beals, superintendent for the contractor Fisher-Stoune, Inc., after examining the plans and after making personal observation of the structure, before any part of the west edge of the old roof had been cut away, determined to shore up the west ends of the four east-west trusses during the transition by means of four columns or towers of tubular steel scaffolding, each column being seven feet by five feet, and each composed of four legs, manufactured by Universal Manufacturing Corporation, placed generally and approximately under the west ends of each of the four east-west trusses, plumbed and snugged up against the trusses with timbers composed of 2 x 10's laid on top of the legs of the towers on which the trusses directly temporarily rested. This system was followed, with each of the columns of shoring being identical, and generally similarly placed. The seven foot side or dimension of each column or tower faced west, extending north-south. The five foot side or dimension extended west-east. Apparently the west edge of each column or tower was set in about 4 feet east of the west end of each truss, and if so (the column or tower being 5 feet wide west-east) the center of the weight bearing load as to each truss on the column or tower thereunder would be 6 1/2 feet east of the west end of each truss. The record is not clear, however, as to the precise location of each column or tower or as to the precise center of the weight bearing load as to each truss with respect to the west end of each truss or as to whether all the columns or towers were set in exactly the same distance east of the west end of each truss. The 2 x 10's were not connected together between the columns of shoring. The columns were tied together only by a nailing strip to hold up a canvas tarpaulin, and a 2 x 4 strip covered with plywood and covering approximately the lower four feet on the outside to keep basketballs, etc., from rolling underneath. The gymnasium was used up until the day before the collapse. Mr. Nichol, acting superintendent of the defendant School District had some conversation with Mr. Abbott, of the defendants architects office, and Mr. Beals relative to the location of the shoring — to the effect it was to be placed so as to least interfere with use of the gymnasium. In arriving at the type of temporary structural supports Mr. Beals did not take much into consideration whether the old roof was lightweight or regular concrete. He assumed it was a normal roof. He had a set of plans with him. He used more his own observation of the material. He could not see the concrete. He said the drawing indicated the existing roof was lightweight concrete. During his observations, at the time of location of the shoring, Mr. Abbott (of the architect's office) was there.

On the morning of May 3, 1960, an ironworker crew, which included the three plaintiffs, and Paul Shaffer, and their foreman, Nate Vandervoort, all employed by Fisher-Stoune, Inc., came to the scene and commenced the removal of the north-south proscenium truss and the two steel columns at the west end of the old gymnasium, the west brick wall (which was not a bearing wall, apparently) having theretofore been removed. They first erected two new steel columns at the west end of the new gymnasium, then disconnected the two center east-west roof trusses from the proscenium truss, and disconnected the proscenium truss from the two original steel columns, and moved it to its new location. It was stipulated that when the two center east-west roof trusses were disconnected from the proscenium truss, all of that part of the roof load which had theretofore been supported by the west end of such two center east-west trusses and the proscenium truss was transferred respectively to the shores or columns or towers thereunder. This occurred at approximately 11:00 a.m.

At about 1:00 p.m., operations were commenced to remove the north steel column. In order to do this, a crane was placed in the area of the new building, with a boom extending over in the vicinity of that column. A 5/8ths inch, or 3/4ths inch steel cable with a loop or eye at each end, called a choker, was then wound around the column above the center, and with one loop threaded through the other and then hooked to the hook of the boom. At that time, a "strain" was taken on the cable by the crane operator sufficient to take up the slack and take the kinks out of the choker, for the purpose of holding the column from falling down when it was disconnected. The heads of the bolts connecting the north east-west roof truss to the north column were then cut off; and while the plaintiff Miller, with an acetylene torch, was cutting off the base of the column, one of the other plaintiffs was out on the truss, knocking the bolts out. When the last bolt was knocked out, the crane took that north column away, and the plaintiffs moved over preparatory to repeating the process on the south column.

It was stipulated that upon the removal of that north column, that part of the roof theretofore supported by the west end of the north east-west truss was transferred to the shore thereunder. The time was then approximately 2:00 p.m.

There was some dispute in the evidence as to whether or not a second and additional strain was taken on the choker after that north column was cut through at the base and before the last bolt was removed from the top.

The method of proposed removal of the south column was similar. The crane was moved to the south and the boom extended over to the vicinity of that column, at an angle. The choker was then attached to the column at a point which was variously testified to as being some five to eleven feet from the top. A "strain" was then taken on it sufficient to take up the slack and take out the kinks in the five-eighths inch steel cable. Plaintiff Miller proceeded to cut off the base of the column and then stepped back to the east against the tarpaulin to see if he could see daylight underneath and thus determine that it was cut clear through. Again there is some dispute in the evidence as to whether or not a second additional strain was taken at that time. While Miller was cutting the column off at the bottom, plaintiff Furry was out on the south east-west truss, knocking the bolts out at the top where the west end of that truss was fastened into the south column. Plaintiff Engel was standing on the roof, watching. At the approximate time that Furry knocked out the last bolt, the roof collapsed. The force of the air and the movement of the tarpaulin knocked Miller out into the new part of the building and entangled him in the tarpaulin. Engel rode the roof down. Furry was caught under some of the steel purlins and pinned therein, necessitating cutting the steel loose with an acetylene torch while buckets of water were poured on his leg to keep it from getting burned. The collapse took place at approximately 3:00 p.m. Several pictures of the scene after the collapse are in evidence.

Each of the plaintiffs, the crane operator, and the other ironworker testified that there was no movement of the south column before the collapse of the roof. The plaintiff's witness Kenneth Sexton testified that after Furry knocked the last bolt out, "the column on the south end swung out" and that the "support there began to collapse and come on down and then as it went down, it drug everything else with it." From the time the column swung until the collapse was "in seconds," he said.

The tubular steel scaffolding used for shoring was neither designed for, nor did any worker, including the plaintiffs, ever use it upon which to climb or stand, or place and hold tools or materials being incorporated into the building. It was designed and used solely to shore the east-west trusses.

The literature of the manufacturer of the tubular steel shoring, with the load (on each column or tower) equally distributed to the four legs thereof, as was here involved, said the allowable maximum shoring load was 5,000 pounds per leg (20,000 pounds per column or tower).

The Shoring Handbook of Universal Manufacturing Corporation, the manufacturer of the shoring, plaintiffs' Exhibit No. 45, states under the heading "Engineering" and "Loading of Shoring Panels," in part, that:

"This section contains information on loading and spacing of scaffolding used for shoring. The data is based on Universal's experience in the field and was confirmed in laboratory tests conducted under independent supervision.

Also included are tables of engineering data that will be helpful in planning efficient, safe, shoring layouts. Specifically, the tables contain information on the weights of various types of concrete construction, and on allowable timber loads. The next step is the selection and spacing of scaffold panels into towers so as not to exceed recommended loading limits. . . ."


When using this method, the allowable shoring load per column is 5,000 pounds.

To insure absolute safety and determine safe load limits, extensive tests were conducted under Pittsburgh Testing Laboratories' supervision on all major makes of scaffold. Equivalent scaffold towers were erected, loaded in all three ways, and tested till they failed. As a result of these tests, Universal's Engineering Department concluded that no standard type scaffold could safely be loaded beyond 5,000 pounds per scaffold panel leg.

Adequate safety factors are included in the column and girt loading figures in the Engineering Tables in this Shoring Handbook, and this loading data is applicable to all Universal Ezebilt panels.

Recommended loading and capacity data must not be exceeded. . . ."

The defendant DeWitt, testifying under section 60 of the Civil Practice Act (which testimony was later adopted by the defendants architects) said, in substance, so far as necessary to be set forth, that: He is an architectural engineer. The profession of architect overlaps with architectural engineer. There could be some overlap with some functions of a structural engineer in the design of supporting structures of buildings. One of the architect's duties is to see that the material being incorporated into a building is in accord with the specifications, but not necessarily the way it is being so incorporated. He gave as an illustration that if an 8" column of a certain weight and dimension was supposed to be put in and a 6" column of lesser weight was being put in he would see that the 8" column was put in. Before May 3, 1960, he and his office had not made calculations to determine whether the scaffolding used as shoring was strong enough to support the roof truss and roof. They have made such calculations since. In his opinion the shoring was strong enough to support the load. They had calculated the overall weight of the gymnasium roof before the collapse, during the design stage when they were preparing the drawings. They had obtained the original drawings of a Mr. Harris, the original architect when the building was originally constructed, and the shop drawings of Mississippi Valley Structural Steel Co. used in fabricating the steel in the original building. He and his office then designed the structural support for the new addition. From that they calculated the total weight of the roof. The roofing material was tar and gravel, 6 pounds per square foot, the structural deck was 2 1/2 inches thick, about 32 pounds, cork about one inch thick, about 2 pounds, purlins, 2.24 pounds, trusses, 2.35 pounds (figuring the weight of the truss at 1,800 pounds and using a certain formula) — making a theoretical total weight of 43 1/2 (44.59 it would seem) pounds per square foot, and the old gymnasium roof being 80' x 48' or 3840 square feet that makes a total dead load of the roof itself of 167,040 (171,225 it would seem) pounds. Live load would include and add snow, ice, or something of that character (gymnasium equipment attached to the roof, impact from the use of such, etc.). Each (east-west) roof truss carried a roof area 16' wide and 48' long. The shoring should have been adequate, he said to carry the weight. One tenth (1/10th) of the entire roof was supported on each shoring. The weight on each shoring was 16,700 pounds (17,122 it would seem). (Evidently that was on the assumption the bearing point of the truss on the shore was at the extreme west end of the truss.) No cross bracing of the shoring towers was assumed. From the tables in the brochure of the manufacturer of the shoring, plaintiffs' Exhibit No. 45, he arrived at the opinion each leg would carry 5,000 pounds, but there is no table therein exactly like the situation here. The 167,000 pounds total should be reduced because the proscenium arch (or truss) was out, and the concrete roof had been cut back — though he did not know exactly how many feet. He made no calculation of any safety factor in the shoring, but said there is a built-in safety factor. If the bearing point of the east-west truss on the shore were 6 1/2 feet east of the west end of the truss (which is apparently more in keeping with the record) that would make a difference in the load — it would then be 19,200 pounds, about, (instead of 16,700 pounds) on each shoring. He bases his assumption the roof was 2 1/2" thick on measurements made on the job, samples broken off, and the original Harris plans which so indicated. A difference in thickness of that concrete of 1/4" would mean about 3 pounds (per square foot). The plans do not show the weight of the concrete. When he determined the weight of the east-west trusses (figuring them at 1,800 pounds and using the formula concerned), he had not noticed the actual work list on the Mississippi Valley drawings which indicate each truss to be 3,458 pounds, and using that the dead weight loading of each truss per square foot was 4.5 pounds (instead of 2.35 pounds as he'd first calculated). He had never made a personal inspection of the upper end of the shoring. He could not state whether any bracing was done at the truss. The purlins and concrete roof could be considered temporary lateral bracing. No other bracing was necessary pending installation of the new north-south main bearing truss. His calculations show the timbering spiked together at the top of each tower was adequate. In their plans they show a cross section of the new roof section, indicating light weight concrete — new work. Their specifications indicate lightweight concrete roof fill. This was for the fill-in of the part of the old roof which was cut out. It did not mean the type of concrete already in the old roof. He was in and about the job about 3 or 4 times from April 1 when the shoring was erected until the collapse May 3. Mr. Abbott of his office was more directly responsible for architectural supervision. If a shore is appreciably overloaded so it is going to fail it will fail suddenly when overloaded. The plans and specifications sufficiently show the load to be transmitted from the trusses to the shoring. The reaction of the (east-west) trusses in the old roof is in the plans — in the theoretical loading of what Truss B (the new north-south main bearing truss) would carry. All the information necessary for the contractor to so determine is given. The weight of the old roof can be determined by a series of deductions, he said. He did not compute the load the shoring would actually carry before the collapse because it was not his duty to design shoring for a contractor. The manner of supporting an existing structure is the contractor's business. There was no clerk-of-the-works here. The architect, he said has no supervision over the techniques or methods of construction or manner in which the contractor carries on his contract other than as to the end result — the finished product — a completed building, architecturally pleasing, constructively sound, and functionally useful.

Dean Wurth, a structural engineer, was a witness for the plaintiffs, and in substance said this: There is considerable overlap between architects and structural engineers, though in some fields they do not overlap. He had studied the positioning of the shoring here, made computations, and reviewed the Mississippi Valley plans. Plaintiffs' Exhibit No. 47, being a piece of concrete from the old roof is about 2 3/4 inches thick. Defendants' Exhibit No. 1, being also a piece of concrete from that roof, is about 2 1/4 inches thick. Assuming the roof to be 2 3/4 inches, the concrete weighed 34.3 pounds per square foot — assuming 6 pounds per square foot for roofing, 2 pounds for cork insulation, 2.2 pounds for steel purlins, 4.4 pounds for a truss (being 3458 pounds per truss as indicated in the Mississippi Valley drawings) — the total of the roof area would be 48.9 pounds per square foot — 18,800 pounds, about, deed weight to be carried by each shore (1/10th of about 187,776 pounds, being 48.9 x 3840 square feet) — the end reaction at the extreme west end of the truss — 1/2 of the total of 37,600 pounds carried by each truss. If the center of the weight bearing load were 6 1/2 feet east of the west end of the truss the load is increased and the total weight on each shore then would be about 23,700 pounds, dead weight. A strip of concrete slab of roof 3' wide and 16' long would weigh about 2,000 pounds (a part of the old roof had been removed during the operation). If that were subtracted from 23,700 pounds there would be 21,700 pounds on each shore. Each foot the scaffold is moved east toward the center of the truss increases the load 2% — 65% of the total load (if the center of the weight bearing load were 7 1/2 feet east of the west end of the truss) would be 24,500 pounds and reducing that by 2,000 pounds (for the removal of some of the old roof) would leave 22,500 pounds dead load on the center of the shoring under those circumstances. The standard of practice of architects and engineers is the same as to design or specifications for changes in existing structural steel in existing buildings and remodelling. In his opinion, the load or weight to be shored where structural members of substantial size are to be removed should be given on the drawings. No bracing of the four east-west roof trusses would not be careful bracing. The concrete roof deck is partial bracing — for the top but not bottom part of the truss — as would be the purlins, they made some lateral support at the top. On the basis of 2 1/4 inches of concrete roof instead of 2 3/4 inches the total weight per shore would be 19,100 pounds (if the center of the weight bearing load were 6 1/2 feet east of the west end of the truss). The plans here did not tell what the existing roof construction was. From the plans he cannot figure the dead load of the old roof.

The defendants architects' witness Henry Fernandes, a Springfield architect, said, in substance, that from the plans and specifications here involved he can determine the total reaction of the west end of the (east-west) trusses of the old gymnasium — it would be necessary to make some computations but it can be done. "Lightweight concrete" on the plans refers to new work. The function of an architect in designing and supervising construction is to provide the owner a building to serve his purpose, to see that it as finally accepted meets the purposes. The methods and means in arriving at that is the contractor's responsibility. He had no information from the manufacturer but in his opinion the type of scaffolding here concerned could reasonably be assumed to carry twice the load as a safety factor. He thought it would be safe to assume you could go higher than 5,000 pounds per leg and not be negligent — a reasonable amount of overload would not be hazardous — something like 1,000-2,000 pounds, But he would follow the manufacturer's prescription of any further loading when they are that clear. From the figures in the plans you would go back and find the total reaction of each truss on the new truss. The material of the existing roof is not shown. You arrive at these by figuring backwards, figuring from the new. The total carrying capacity of the new north-south main bearing truss was 256,000 pounds. Making certain assumptions and going through the arithmetic a certain way there is a reaction on each old east-west truss of about 24,700 pounds, and he thought the truss weight itself would probably be 3,000-4,000 pounds more, at least. We would not know the weight of the existing roof to be exact, from the computation. We would know that, based on the capacity of the new (north-south main bearing) truss, what the architect had computed to be on the old (north-south proscenium) truss. He thought one familiar with construction work could figure out what the loads were on the existing trusses. Some plans show the load of a given truss at a given point. Some do not. In new work, loads are shown. In remodelling or shoring it is very unlikely to find anything in the plans or specifications on that.

The defendants architects' witness John F. Sweetnam, a Decatur architect and structural engineer, said that the architect's responsibility lies in end results — giving the owner a completed building conforming to the plans and specifications. It does not include the means, progress, or procedures employed by the contractor in completing the construction. He had examined the plans here concerned. He said by theoretical determination and analysis thereof the load on the ends of the four (east-west) trusses fastened in the proscenium arch can be determined. It is not customary in the vicinity for an architect to show on plans and specifications, in figures, the load a contractor needs to shore up in connection with construction. Making his computations from the plans and shop drawings, considering the (east-west) trusses, the purlins, the roof, with concrete at 2 1/2 inches thick (the plans do not show the thickness, he said), the dead load at the extreme end of each truss would be 17,900 pounds, and 18,600 pounds is the weight transmitted to each shore if the center of the shore is 6 1/2' (east) of the west end of the truss and if 3' of the roof is removed. A shore adequate to carry 18,600 pounds would be satisfactory shoring. As to the attachment of the choker from the crane on the (north or south) columns under the circumstances indicated, with some eccentricity, the tendency would be for the top of the column to swing out from and the bottom to swing in toward the building. After the west end of each east-west center truss was disconnected from the proscenium arch the entire load of the area supported by that truss is transferred to the shore thereunder — 1/10th of the roof load. Here the proscenium (north-south) truss was to be removed and reused, and the (east-west) trusses were to be reconnected to the new (north-south main bearing) truss. The roof was to be part new and part that of the existing structure. The contractor is responsible for the building during construction. The work manner, or means of construction, or procedure used are solely the prerogative of the contractor. The type of shoring here was up to the decision of the contractor. The minute an architect goes in and assumes responsibility, he becomes liable.

The blue prints for the remodelling of the defendants architects, plaintiffs' Exhibit No. 1, contain, inter alia, these references or recitals: first floor plans, drawing No. 6: "remove all existing structure of stage and west walls"; wall sections, drawing No. 9: "Section B — Lt. wt. conc. — blt. up roof — Section C — insulrock"; building sections and roof details, drawing No. 10: "Detail A-2" insulrock — lt. wt. conc."; roof framing plan, drawing S-4: "existing trusses to remain — rework end conditions (the west-east trusses) — line of existing purlins — new 8 x 10 purlins to bear on existing trusses — truss B (the new north-south truss) — truss A, A-1, A-1, A (the new west-east trusses in the new part)"; trusses and misc.: steel details, drawing S7: "reworking of west end of existing truss framing into truss — truss B (the new north-south truss)." The original drawings of Mr. Harris for the original building, plaintiffs' Exhibit No. 2, contain, inter alia, these references or recitals: sheet 7: "Truss A-4 like this (the west-east trusses) — Truss B-1 like this (the original north-south proscenium truss)"; sheet 12, roof framing plan: "Truss B (the original north-south proscenium truss) — truss A (the four west-east trusses)." The drawings of Mississippi Valley Structural Steel Co. for the steel in the original building, plaintiffs' Exhibit No. 3, contain, inter alia, these references or recitals: sheet E4, 2nd floor and roof plans: "Truss 12B1 (the original north-south proscenium truss) — truss 6B1, 6B2, 6B2, 6B1 (the four west-east trusses)"; sheet 5: "roof trusses)"; sheet 6: "roof trusses — make 2 trusses, mark 6B1 — make 2 trusses, mark 6B2 — (the west-east trusses) — weight 13,832 pounds — (which would be 3,458 pounds for each of the 4 west-east trusses) — make 1 truss — mark 12B1 (the original north-south proscenium truss — the weight of which we cannot find thereon)." The drawings of Mississippi Valley Structural Steel Co. for the new north-south main bearing truss, plaintiffs' Exhibit No. 50, contains this recital or reference: "one truss — A7 — weight 19,614 pounds."

During the direct examination of plaintiffs' witness Ronald W. Shafer, a teacher, although his testimony was expressly limited to the defendant School District, plaintiffs' counsel asked him if he had had a conversation in the gymnasium before the collapse, with a Mr. Boyd, football coach and assistant principal of the school, concerning the safety of the shoring that had been erected. When objection was made to his question by the defendant School District, which was sustained, plaintiffs' counsel said:

"If the Court Please, this is not intended to be probative in any fashion as to the sufficiency of the shoring but to show notice on the part of the owners who should have been doing something about it."

The defendant School District again objected, the defendants architects did not specifically object but asked that a mistrial be declared, and the objection was again sustained. Later, after some discussion outside the presence of the jury, a motion to strike all the witness' testimony was granted, and the jury instructed to disregard the same. The court denied the defendants architects' motion for mistrial made upon the grounds that the alleged prejudicial character thereof and of counsel's statement could not be erased from the minds of the jury.

During the cross-examination of the defendant Lyle DeWitt, after the witness had testified that he would have had no right to interfere with the contractor's manner of shoring up the trusses, plaintiffs' counsel asked if he would not have interfered anyway and stopped the work if he saw the contractor attempting to shore up a steel truss weighing many tons with a 2 x 4 standing on end. We find in the abstract no objection by the defendants architects to that line of questioning. The plaintiffs' counsel followed this up in his closing argument to the jury, the defendants architects say, but we find in the abstract very little reference thereto in the argument to the jury.

By the questioning of certain witnesses and by parts of the final argument, the defendants architects say that the counsel for the plaintiffs developed that there was no other place for plaintiffs to work but on the roof, the trusses and the floor, and that therefore, the thing which held up the roof, namely the shore, was a scaffold. This, the defendants architects urge, was an entirely different theory of recovery than that stated in the complaint, although plaintiffs' counsel denied that he had changed his theory.

Neither Thomas Bull, an employee of DeWitt who actually prepared the plans for DeWitt, nor Mr. Abbott, another employee of DeWitt, who more frequently visited the site, were called as witnesses by either side. The defendants architects say that Abbott was not present at the time of the collapse, and there was no evidence he had any knowledge of the sufficiency or insufficiency of the shores. No effort was made by plaintiffs' counsel to subpoena either, nor was any request made upon the defendants to produce them. In his capacity as the person actually supervising for the defendant DeWitt, the defendants architects say Abbott could have been called by the plaintiffs under section 60 of the Civil Practice Act, but was not. In the final argument, plaintiffs' counsel referred to the fact that they were not produced as witnesses by the defendants, and argued that unfavorable inferences should be drawn therefrom — to some of which references the defendants architects objected — but on several occasions they did not object.

The plaintiff Harold A. Miller was knocked from the level where he was working into a sub-basement some ten feet below, injuring his back and left leg. He was cared for by Dr. Terrell and Dr. Sterling G. Parker. Dr. Parker is an orthopedic surgeon. He had X rays made of the entire back and pelvis which were negative for fracture. The left foot and ankle were X-rayed and showed a comminuted fracture of the left os calcis — heel. The os calcis was impacted, that is, it was broken in several fragments and impacted together. He was disabled from work until January 19, 1961. He then returned to work at an increase in pay and has worked steadily since. He has a permanent disability of the left foot with approximately one half of the side motion of the left foot compared to the right; some thickening of the os calcis under the heel joint; and some residual deformity. He was unable at the time of trial to do any of the climbing jobs necessary in the structural steel trade and was still having constant pains through the foot and ankle when at work on construction jobs. His total medical expense was approximately $650 and his loss of income was approximately $5,000.

The plaintiff Ellis Furry was injured when he was trapped in the steel truss on which he was working when it collapsed. His right leg was caught under the truss and twisted and crushed. It was necessary to use an acetylene torch to cut the steel away, and buckets of water were used to keep him from burning as much as possible. It was necessary to use the torch within eight or ten inches of his leg and it was blistered by the heat even with all the water that was used. He was conscious and kept saying the men were burning him up. Most of the clothing was gone from his body and there were abrasions on all of his body, head, face and shoulders. The bone was protruding through the skin of the right leg and according to Dr. Terrell, who assisted him while he was being cut loose from the steel truss, he was in so much pain it was hard to tell if he was conscious or unconscious. He had multiple fractures of both bones of the right leg; a rupture of one of the muscles of the right leg in the thigh; an injury to the left shoulder blade; fractures of the rib cage, consisting of fractures of the third, fourth, fifth, sixth, seventh and eighth ribs on the right and eleventh and twelfth on the left; and fractures of the second lumbar vertebrae and the transverse process of the first lumbar vertebrae. He was treated with a body cast from the arm pits to pelvis and a right leg cast. His right leg was operated on and a steel plate six or seven inches long with seven screws was used to hold the leg in place. This plate is permanent. He ended up with limitations of motion in the back in all directions; limitations in the movement of the right leg and ankle; bone bridging of several of the vertebrae and a crepitus in the knee. He returned to work about October 31, 1960, at an increase in pay and has worked steadily since. He has not done any high iron construction work since the accident. His legs pain considerably and his knee hurts upon work and his left arm is disabled. His overall physical condition was below his normal state of well-being prior to the accident. His leg was still scarred at the time of the trial from the burns received when he was cut out of the steel. His special damages, including loss of wages, were about $7,500.

The plaintiff Donald E. Engel was treated by Dr. Terrell. He was complaining of injury to both knees and upon examination showed lacerations and other injuries in the knee area. Sutures were required to close part of the wounds on each leg. X rays were ordered which were negative. Dr. Terrell diagnosed the ankle injury as a sprain. He was treated in the office on May 6th and on May 9th the sutures were removed. He was last seen by Dr. Terrell with reference to the legs on December 23, 1960, at which time they had healed well. Engel tried to return to work two weeks after the accident but broke the stitches loose in his leg and was then off work after that for a month or two. In addition he had numbness of the left hand and arm and stiffness in the shoulders and neck and upper portions of his back. He also had had three or four dizzy spells since the accident up to the time of trial, which according to Dr. Terrell could be connected with the accident, but which he could not say were. He still had some scars on his leg as a result of the occurrence and that plus the headaches were the only residuals from the accident at the time of trial. He no longer does any of the red iron (structural steel) work because of the generally unnerving effect of the collapse of the roof. His special damages, including loss of income, were less than $1500.

The agreement of April 14, 1959, between Community Unit School District No. 2, Macon County, Maroa, Illinois, the owner, and DeWitt-Amdal & Associates, the architect, plaintiffs' Exhibit No. 4, provided, in part, so far as material:

"The Architect agrees to perform, for the above named work, professional services as hereinafter set forth.

The Parties hereto further agree to the following conditions:

1. The Architect's Services: The Architect's professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, for architectural, structural, plumbing, heating, electrical, and other mechanical work; obtaining approval of governmental agencies having jurisdiction over certain phases of the work consisting of Fire Marshal, Health Department, County Superintendent of Schools, and Department of Education; assistance in the drafting of forms of proposals and contracts; the issuance of Certificates of Payment; the keeping of accounts, and the general administration of the construction contracts, and supervision of the work.

6. Supervision of the Work: The Architect will endeavor to guard the Owner against defects and deficiencies in the work of contractors, but he does not guarantee the performance of their contracts. The supervision of an Architect is to be distinguished from the continuous personal superintendence to be obtained by the employment of a clerk-of-the-works.

When authorized by the Owner, a clerk-of-the-works acceptable to both Owner and Architect shall be engaged by the Architect at a salary satisfactory to the Owner, and paid by the Owner, upon presentation of the Architect's monthly statements."

The agreement of September 14, 1959, between Fisher-Stoune, Inc., the general contractor, and Community Unit School District No. 2, Macon & DeWitt Counties, Illinois, the owner, plaintiffs' Exhibit No. 5, provided, in part, so far as relevant:

"Article 1. Scope of the Work.

The General Contractor shall furnish all of the materials and perform all of the work to complete the General work shown on the drawings and described in the specifications entitled `Second Addition to Maroa High School, Community Unit School District #2, Macon & DeWitt Counties, Illinois.'

Drawings: 1 through 17, and S-1 through S-8, dated 7-27-59.

Specifications: Pages 1 through 90.

Addenda #1, dated Aug. 10, 1959, #2, dated Aug. 12, 1959.

prepared by DeWitt-Amdal & Associates, Architects, acting as and in these Contract Documents entitled the Architect; and shall do everything required by this Agreement, the General Conditions of the Contract, the Specifications, and the Drawings, and/or as follows:

Article 6. The Contract Documents.

The General Conditions of the Contract, the Specifications and the Drawings, together with this Agreement, form the Contract, and they are as fully a part of the Contract as if attached or herein repeated.

12. Protection of Work and Property:

The Contractor shall continuously maintain adequate protection of all his work from damage and shall protect the owner's property from injury or loss arising in connection with this Contract. He shall make good any such damage, injury or loss, except such as may be directly due to errors in the Contract Documents or caused by agents or employees of the Owner, or due to causes beyond the Contractor's control and not to his fault or negligence. He shall adequately protect adjacent property as provided by law and the Contract Documents.

The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials; and he shall designate a responsible member of his organization on the work, whose duty shall be the prevention of accidents. The name and position of any person so designated shall be reported to the Architect by the Contractor.

13. Inspection of Work:

The Architect and his representatives shall at all times have access to the work wherever it is in preparation or progress and the Contractor shall provide proper facilities for such access and for inspection.

If the specifications, the Architect's instructions, laws, ordinances or any public authority require any work to be specially tested or approved, the Contractor shall give the Architect timely notice of its readiness for inspection, and if the inspection is by another authority than the Architect, of the date fixed for such inspection, required certificates of inspection being secured by the Contractor. Inspections by the Architect shall be promptly made, and where practicable at the source of supply. If any work should be covered up without approval or consent of the Architect, it must, if required, by the Architect, be uncovered for examination at the Contractor's expense.

Re-examination of questioned work may be ordered by the Architect and if so ordered the work must be uncovered by the Contractor. If such work be found in accordance with the Contract Documents the Owner shall pay the cost of re-examination and replacement. If such work be found not in accordance with the Contract Documents, the Contractor shall pay such cost, unless he shall show that the defect in the work was caused by a Contractor employed as provided in Article 35, and in that event the Owner shall pay such cost.

14. Superintendence: Supervision:

The Contractor shall keep on his work, during its progress, a competent superintendent and any necessary assistants, all satisfactory to the Architect. The superintendent shall not be changed except with the consent of the Architect, unless the superintendent proves to be unsatisfactory to the Contractor and ceases to be in his employ. The superintendent shall represent the Contractor in his absence and all directions given to him shall be as binding as if given to the Contractor. Important directions shall be confirmed in writing to the Contractor. Other directions shall be so confirmed on written request in each case.

The Contractor shall give efficient supervision to the work, using his best skill and attention. He shall carefully study and compare all drawings, specifications and other instructions and shall at once report to the Architect any error, inconsistency or omission which he may discover, but he shall not be held responsible for their existence or discovery.

15. Changes in the Work:

In giving instructions, the Architect shall have authority to make minor changes in the work, not involving extra cost, and not inconsistent with the purposes of the building, but otherwise, except in an emergency endangering life or property, no extra work or change shall be made unless in pursuance of a written order from the Owner signed or countersigned by the Architect, or a written order from the Architect stating that the Owner has ...

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