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Roder v. Dobbs

JUNE 24, 1966.

CHRISTIAN P. RODER, PLAINTIFF-APPELLANT,

v.

PAUL C. DOBBS, D/B/A EMBASSY ROOFING AND INSULATION CO., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. HAROLD P. O'CONNELL, Judge, presiding. Affirmed.

MR. JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

Christian P. Roder, plaintiff, brought an action under the Illinois Structural Work Act (Ill Rev Stats 1965, c 48, §§ 60, 69). In his complaint he alleges that on July 17, 1958, Paul C. Dobbs, the defendant, was engaged in the business of repairing roofs on buildings and that on and before July 17, the defendant, by his servants, was repairing a roof on a building located at 3821 North Damen Avenue; that while thus engaged, defendant "was in complete control and was supervising the work which was being done on said building"; that at the time servants of defendant were using ladders placed against the exterior of the building in order to gain access to the roof; that the plaintiff was a sheet metal worker engaged in other repair work on the building; that the plaintiff was lawfully on the premises in performance of his work, and that while he was ascending the ladders they collapsed, causing the plaintiff to fall and sustain injuries.

It is also alleged that "in connection with said repair work, it was the duty of the defendant to provide ladders to gain access to the roof of the building, which were erected, constructed and maintained in a safe, suitable and proper manner, and erected, constructed, placed, and maintained so as to give proper protection to the life and limb of the plaintiff herein, in accordance with the applicable provisions" of the Illinois Structural Work Act. It is further alleged that the defendant violated the provisions of the statute and "wilfully failed, refused and neglected to have the said combination of ladders erected and maintained in a safe, suitable, and proper manner, so as to give proper and adequate protection to the . . . plaintiff herein, while he was in the performance of his duties on the said ladders."

At the close of the plaintiff's case the trial judge directed a verdict in favor of defendant and entered a judgment from which plaintiff appeals. The single issue presented to this court is whether the evidence considered in the light most favorable to the plaintiff would be sufficient to support a finding in his favor.

The plaintiff testified that he operated a small shop which engaged in sheet metal work; that he had been in that business for forty years; that he had entered into a contract with the owner of a building located on North Damen Avenue, in Chicago, in which contract he had agreed to remove the old rain gutters from the building and to install new ones. The plaintiff further testified that the owner of the building had entered into another contract with the defendant to put a roof on the building, and that there was an agreement with the owner to have a roofer there at the time when the plaintiff would be there, in order to save money; that the date set for the work to be done was July 16, 1958. The plaintiff further testified that he was not working under the supervision of anyone; that he had never spoken with the defendant or any of his employees with reference to the use of the ladders, and that none of them asked him to leave a ladder for them.

Continuing his testimony, plaintiff said that on July 16, 1958, the date on which he assumed the parties were to start their respective work, he went to the work site without taking a ladder with him, expecting or hoping to find that defendant's crew had already arrived and had supplied a ladder. Plaintiff found no other workers there, so he returned to his shop and procured a set of extension ladders, then returned to the work site. He stated that he had tested the rungs of the ladder before using it and had found the ladder to be sturdy and safe. He placed the ladder against the building and used it several times while completing his work on the gutter system of the house. By 10:30 a.m. the same day he had installed the gutters. He did not know whether or not the defendant's crew was going to show up, so he tied the extension ladder to the gutter on the roof of the house with sash cords. The plaintiff testified that he left the ladder there "in case the roofers didn't show up, so I could go back up and plastic the gutters" to make them waterproof. Plaintiff did not at any time plastic the gutters.

Plaintiff's brother testified that he had been employed in the sheet metal business installing gutters on roofs for about sixteen years; and that there was a custom between sheet metal tradesmen and roofing tradesmen to use just one ladder to get to the roofs. Thomas Brown testified on behalf of the plaintiff that he had worked as a roofer on jobs where other tradesmen were working concurrently, or at the same time, and that he had observed roofers and sheet metal workers gain access to roofs by the use of ladders. He further testified that "It's a very common thing for anybody just to come over and ask us to use it or ask us to use our ladder and do such, either going up to a roof or coming down."

The plaintiff testified that he returned to the work site at about noon on July 16, that he saw one man going up the ladder with a rope, and saw one man on the roof. Plaintiff stated that during his experience in working on gutters and around roofs he had noticed that roofers used a rope for bringing materials up to the roof. He testified that he returned to the site at about 2:00 or 2:30 p.m.; that he noticed there had been a fire which had burned the tires off the tar pot; and that defendant's equipment was being moved east on Berenice Street. Plaintiff testified that he returned to the job site the next day, July 17, at about 3:30 p.m.; that since there was no one there he assumed the job was done, and he decided to take his ladder down; that in order to do that it was necessary to untie the sash cord with which he had attached the ladder to the roof; that he started up the ladder, put his left foot on the sixth rung, and when he put his weight on it the rung fell out and he fell to the ground. He testified that he saw the rung lying in front of the ladder, and that "it was about 18 inches long, and it looked very jagged on both ends." (The rung of the ladder was not produced in court and plaintiff testified that the ladder had been destroyed.)

A witness who lived in the building which was being repaired, and whose family owned the building, testified that it was understood that the gutter men and the roofing men would arrange the date when they would repair the roof and gutters; that she had noticed the plaintiff had left his ladder standing against the house, and that it was the only ladder there.

The plaintiff claims that the court should have permitted the case to go to the jury. He argues that the question of who had charge of the work should have been submitted to the jury. The defendant argues that since the plaintiff was a contractor on the job who had owned, installed and maintained the ladders in question, plaintiff was one of those persons in charge of the work within the meaning of the Illinois Structural Work Act. The defendant also contends that the plaintiff failed to prove that the defendant was in charge of the work at the time the plaintiff was injured, and that the plaintiff failed to prove that defendant committed a wilful or knowing violation of the Act (Ill Rev Stats 1965, c 48, §§ 60, 69). The pertinent portions of that Act are:

"60. § 1. . . . all scaffolds, hoists, cranes, stays, ladders . . . erected . . . by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any . . . building . . . shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, . . .

"69. § 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building . . . or other structure within the provisions of this act, shall comply with all the terms thereof, and any such owner, contractor, sub-contractor, foreman or other person violating any of the provisions of this act shall upon conviction thereof be fined not less than $25, nor more than $500 or imprisoned for not less than three months nor more than two years or both fined and imprisoned in the discretion of the court.

"For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; . . ."

The first question to be determined is whether or not, at the time of the accident on July 17, 1958, defendant had charge of the repairing or alteration of the building in question; and if so, did he knowingly violate the Act by erecting an unsafe ladder? The phrase, "having charge of," involves a question of statutory consideration. In Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785, a complete history of the Structural Work Act is given, together with the interpretations that are laid down by the courts up to the time of the ...


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