Appeal from the Circuit Court of Champaign County; the Hon.
CHARLES E. KELLER, Judge, presiding. Affirmed.
Rehearing denied August 16, 1965.
In an action framed under the Structural Work Act, Chap 48, sec 60-69 (Ill. Rev Stats 1959), the jury found in favor of the defendant. Plaintiff appeals from the judgment entered on such verdict.
The complaint alleges that the plaintiff was employed by Traylor Bros., Inc., a corporation, which was the general contractor in the construction of a building for S.S. Kresge Co., a lessee. The defendant was a subcontractor for masonry work upon such building. It appears that this contract was one of a number of contracts, each relating to the construction of a building or unit which was part of a development known as Country Fair Shopping Center, Champaign, Illinois, and the work upon all of the units in such complex was being done by the contractor and the several subcontractors simultaneously.
The complaint alleges that the defendant, "was a supplier of scaffolding for Traylor Bros., Inc." It was alleged, among other things, that it was then and there the duty of the defendant to maintain the scaffolding supports and mechanical contrivances for use in the erection of the building and to construct the scaffolding and the planking thereon in such manner that the planking and the scaffolding would support an adequate load. It was further alleged that the defendant "wilfully failed" to take the precautions required by law and permitted dangerous planking to remain on the scaffolding, when by the exercise of reasonable care such dangerous condition could be discovered, and that as the direct and proximate result, the plaintiff fell when the planking on which he was standing on the scaffold broke so that he suffered permanent injury. Issues were formed for the jury by defendant's answer.
In argument it was also urged that by custom in the building trades, members of the various building crafts used scaffolding that had been erected by members of other crafts upon the job. Evidence upon this theory was permitted to go to the jury and was presumably considered by the jury in arriving at its verdict of not guilty.
The tenor of the evidence is that the scaffold referred to was constructed from tubular units, sometimes referred to as "bucks." Such units could be joined together to construct a framework as required. Planks were then laid upon or across the bucks. No fault or defect in the "bucks" is in evidence and none is claimed. The issue is as to whether or not defendant is liable for planks alleged to be defective.
Upon the issue of defendant's contractual duty to provide scaffolding for the erection of the building, the defendant testified that he had a separate subcontract for each unit being constructed in the Country Fair Shopping Center, and that Traylor Bros., Inc., was the general contractor. The contract for the Kresge unit, Exhibit 102, has been placed in evidence. Defendant testified that he had scaffolding for his own use on the job, as his contract stipulated, and that the contractor and the several subcontractors had scaffolds on the job. Plaintiff does not contend in his brief and argument that the exhibit provided that the defendant should supply all of the scaffold for the erection of the Kresge building.
Hillenbrand, the general superintendent for the contractor, testified in behalf of the defendant. He stated that the contractors had their own scaffold on the job, there being at least 20 sections of it, and that such scaffold was used by the ironworkers. He further testified that there was generally enough scaffold on hand, apparently referring to scaffold supplied by the contractor, and he further testified that the contractor generally had each craft furnish its own scaffolding. His testimony was to the effect that the contractor, Traylor Bros., Inc., had boards available to use as planking upon the scaffold provided by the contractor and that ironworkers, sheet metal workers, carpenters, cement finishers and air conditioning men all used such scaffold on the job.
Plaintiff's testimony as to defendant's obligations to supply scaffold is to the effect that he never saw Traylor Bros.' scaffold at the site, and that his employer, Traylor Bros., would have told him, the plaintiff, if the former had had scaffold on the job. McVey, a carpenter foreman for the contractor, called by the plaintiff, testified that he did not know whether Traylor Bros., the contractor, had scaffold on the job.
Gurney Brown, an ironworker called by the plaintiff, was working with the plaintiff at the time of his injury. He testified that he did not know whether Traylor Bros. had scaffolding planks on the job. Upon cross-examination, the Abstract shows that he testified that, "We erected our own scaffold part of the time and part of the time we did not." He continued that he did not know whether plaintiff and he erected the scaffold on which they were working that day. As shown in the Abstract, he also stated on cross-examination:
"I had an idea that we built our own scaffold, made up a scaffold, might be we do that and we move it from one store front to another. I don't know whether we moved it or not."
Plaintiff offered evidence with regard to the custom of the building trades as to one craft using the scaffolding erected by another craft. The plaintiff, an ironworker foreman for the contractor, does not testify upon the points.
One Sollers, a mason, called by the plaintiff, stated that it was "pretty common" for crafts to use a scaffold, "If it is already erected in place where they have a little work to do." The Abstract shows that upon cross-examination he testified:
"As a rule if a masonry scaffold is already erected and there is other work to be done, then they use it as far as I know, regardless whether it is a small or large amount of work to be done, masons might use other scaffold."
McVey, carpenter foreman for Traylor Bros., testifying as to the custom, said:
"There is a difference from masonry scaffold than from other forms of scaffold. They are usually built differently, we will use what is erected."
Brown, an ironworker, testifying for the plaintiff, on cross-examination stated that normally ironworkers build their own scaffold. He further testified that on the date of the injury, the masons were not doing any work on the Kresge unit, and that masons would have no occasion to put up scaffold in the area until they put up their brick.
Ritchie, a hod carrier, testifying at the call of the defendant, stated that if the masons had scaffold built it is possible that other crafts would use it. The defendant, testifying in his own behalf, stated that other crafts can use scaffold already in ...