Appeal from the Circuit Court of Cook County; the Hon. ELMER
N. HOLMGREN, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
The plaintiffs, Jewell Hopwood and John Harrod, appeal to this court from a judgment entered on a jury verdict in favor of the defendant, Thomas Hoist Company, and from the trial court's denial of their motion to set aside the verdict and grant them a new trial. The defendant, Thomas Hoist Company, was also a Third-Party Plaintiff in the lower court and has filed a separate appeal from a directed verdict in favor of Sumner Sollitt Company, the Third-Party defendant, and has also appealed from the trial court's denial of its motion to set aside this verdict and grant a new trial, in the event that the verdict and judgment is reversed in the original action brought by the plaintiffs against Thomas Hoist.
The contentions of the plaintiffs are: (1) That since a custom cannot reduce the standard of care required by law, it was error for the court to admit into evidence the practice of the defendant not to set certain safety devices upon its hoist until notified to do so by the contractor; (2) that it was improper for counsel for defendant to base his closing argument upon the guilt of the third-party defendant, Sumner Sollitt Company; (3) that prejudicial error was committed by counsel for Sumner Sollitt when he brought out, in the presence of the jury, that plaintiff Hopwood had prosecuted a claim for workmen's compensation; (4) that the combined prejudicial error in this record resulted in a deterioration of the judicial process to such an extent that the plaintiffs did not receive a fair trial.
The facts are: Plaintiffs brought this action against the defendant hoist company for personal injuries they sustained on September 29, 1955, on a construction project at DeWitt and Chestnut Streets in the city of Chicago. At this time the plaintiffs were employed as carpenters by the third-party defendant, Sumner Sollitt Company, the general contractor of the construction project.
Thomas Hoist was engaged in the business of supplying contractors with hoisting equipment. In September of 1955 it leased to Sumner Sollitt a hoist consisting of a tubular tower made up of different pieces of pipe, a concrete bucket, a platform and cage designed to run along the rail inside the tower after assembly, and a power unit to operate the device. The power unit consisted of three drums, one of which operated the bucket, one the cage, and the other a boom.
The power unit was delivered completely assembled except for the setting of a certain safety device called a Lilly Overwind, which was designed to stop the platform from falling in the event that it descended at a greater speed than that for which it was set. This safety device, although attached to the power unit when it leaves the factory, is set after the equipment is installed in the field and ready for operation. The sections for the tower and the parts for the platform and cage were delivered in a disassembled state; the assembly and erection of the hoist was performed by Archer Ironworks, a subcontractor of Sumner Sollitt.
It was the duty of the general contractor, after the ironworkers finished the installation of the hoist, to enclose the cage with plywood and chicken wire so as to prevent men and equipment from falling out of it, and also to install a gate on the cage, which gate is usually operated by vertical lifting.
After delivery of the hoist and three to four days before the occurrence in question, Mr. Kelly, a workman for Thomas Hoist, visited the job site to install certain fuses which ordinarily were installed prior to delivery. These fuses were necessary so that the iron workers could rotate the drums and unwind the cables that connect the drums on the hoist to the cage. Prior to the installation of the fuses the hoist was not operable, nor was the cage enclosed or ready for carrying personnel.
Mr. Kelly testified that at that time, after installation of the fuses, from his experience it would take approximately 3 to 4 hours to make the hoist operable; also, it would take a week before the cage was readied for carrying personnel. At that time the hoist was not in such an erection state as to enable him to set the safeties. He further stated that when he went to the job site after the accident, the cage was just being installed on the platform.
Mr. Parker, plant superintendent for the hoist company, testified that the safety device is set when Thomas Hoist is notified to do so by the contractor. However, Sumner Sollitt did not so notify Thomas Hoist until after the accident. Mr. Kelly also testified that he was not in the habit of setting the safety until notified to do so, and he had not been notified until after September 29, 1955.
At the time of the accident, the hoist was operated by an employee of Sumner Sollitt. Thomas Hoist had no record that the hoist was being used prior to the accident, and likewise had no knowledge that it was being used for the carrying of personnel. The plaintiffs sustained their injuries when the hoist, upon which they were riding, fell from about the 4th or 5th floor to the ground level.
After the accident, Mr. Parker was notified and he came to the site to conduct an investigation. He found that the cable had not broken, and that the braking mechanism, which was new, operated on the hoist without incident when proper pressure was applied thereto. He found that the platform was not enclosed, as was normal when personnel was to be carried upon the hoist.
On August 30, 1956, Jewell Hopwood sued the defendant. Thereafter Sumner Sollitt intervened in that case in order to protect its lien for workmen's compensation payments made to Hopwood. On October 29, 1962, Thomas Hoist obtained leave to file a third-party complaint against Sumner Sollitt. This was dismissed on motion, as was a later amended third-party complaint. John Harrod filed his suit against the defendant on February 20, 1957. On June 27, 1963, the defendant filed a third-party complaint in the Harrod case against Sumner Sollitt, which was later dismissed.
The two cases were consolidated and started to trial without third-party complaints. This trial resulted in a mistrial on April 10, 1964. After the mistrial the defendant obtained leave to file a second amended third-party complaint in the consolidated actions. The case was assigned for trial on May 27, 1964. After all of the evidence was heard the trial court directed a verdict for the ...