Appeal from the Circuit Court of Cook County; the Hon. IRWIN
N. COHEN, Judge, presiding. Judgment adverse to defendant
MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.
The plaintiff, Charles Vykruta, was injured while working as a bricklayer for J & E Duff, mason contractors, who were engaged in building an addition to a gymnasium. The Duff Company had rented a hoist from the defendant, Thomas Hoist Company, to lift bricks, mortar and other material from the ground floor to the upper parts of the building. The plaintiff rode the hoist and was injured. He brought this action against the Thomas company to recover damages for his injuries allegedly occasioned by the defendant's violation of the Structural Work Act. (Ill Rev Stats, c 48, pars 60-69 (1955).)
Thomas filed a third party complaint for indemnity from Duff asserting that Thomas was not guilty of active negligence or wilful misconduct and that if Vykruta was entitled to recover from Thomas it was a result of the misconduct of Duff. A jury returned a verdict for Vykruta and judgment was entered thereon. The trial court directed a verdict for Duff, the third party defendant, and entered judgment. Thomas appeals from both judgments contending that it did not have charge of the work within the meaning of the Act, that the jury was improperly instructed and that the court erred in directing a verdict for Duff.
The hoist was designed and manufactured, and installed on the job site by Thomas. When work on the lower part of the building had been completed Thomas returned to the site and extended the hoist to its full height. It was known as a "laddermatic" hoist because it resembled an extension ladder and could be lengthened or shortened to reach different heights. It had a platform, large enough to carry a single wheelbarrow, upon which materials were placed. The platform was elevated by a steel cable of 10,000 pounds tensile strength which was attached to the platform and ran from the platform up the front of the ladder to a pulley at the top. The cable, which was powered by a gasoline engine, passed through the pulley and then ran down to a drum around which it wound as the platform rose. The cable and the pulley were not enclosed and there was no safety rail around the platform. The descent of the platform was controlled by a centrifugal brake. When the platform was lowered it would first descend of its own weight until it reached a speed which caused the brake to restrain it.
The Duff company had six or seven bricklayers and four laborers on the job. The laborers ran the hoist. One laborer loaded materials onto the platform at the ground level and sent them up to the level where the bricklayers worked; there another laborer removed the materials from the platform and took them to the bricklayers. On the morning of the occurrence several bricklayers came to work at the same time as Vykruta. They placed their tools on the platform and climbed ladders to the third floor where they were working but Vykruta, after putting his tools on the platform, stepped on it himself and rode it upward.
His fellow-employees testified that he held onto the cable with his right hand, that this hand was placed high on the cable, and that as the platform neared its stopping place his right hand became caught in the pulley. As he jerked his hand free the cable came off of the pulley, struck a crossbar beneath it and snapped; the platform dropped and he fell about ten feet. Vykruta testified that he did not hold onto the cable, that he stood on the platform with his hands at his side, that when the platform reached the upper level he started to remove his tools, that he had one foot on the platform and the other on the upper floor of the building, that the platform began to slip downward and that in reaching for a handhold to save himself from falling he struck his right hand between the cable and the pulley. After falling to the next floor he managed to grab another cable on the hoist with his left hand and arrested his fall. He was right-handed and three fingers on this hand were badly injured.
The hoist was inspected after the accident. Except for the severed cable and some damage to the platform caused by the fall, the hoist was in excellent condition. The cable itself was not worn and there were no defects or evidence of malfunction in the pulley, motor, drum, clutch, brakes, ladder or control system. An expert who examined the hoist gave his opinion, in answer to a hypothetical question, that the cable was peeled from the pulley causing the cable and platform to drop and that the cable was cut as a result of being pulled over the crossbar.
Vykruta testified on direct examination that he had ridden the hoist before; however on cross-examination he said this was the first time he rode it. His attorney reverted to the subject on redirect examination and Vykruta again said that the first time he rode on the hoist was the day he was injured. He testified that prior to this day he had seen some of the workmen riding on the hoist and that he had seen men riding on hoists on other jobs. He also said that he had never been told not to ride the hoist and that he did not see any warning signs posted around it. In this he was contradicted by a laborer who operated the hoist. This witness testified that not only the foreman but some of the workers warned Vykruta, who had started to work on this job about a month and a half earlier, not to ride the hoist. The witness further testified that there was a "NO RIDERS" sign on the platform.
One more pertinent evidentiary topic must be mentioned: Vykruta's testimony indicated that Thomas repaired the hoist. His exact words were: ". . . there was a couple of times they were fixing that hoist all the time the company that they rented it from." However, his testimony on cross-examination conflicted with his direct testimony:
"Something went wrong with the pulley. . . . [T]hey called that mechanic up there. I don't know who the mechanic worked for. I don't know whether he worked for Thomas Hoist. . . . They had trouble with the machine. They had to fix it about three times. . . . I don't know who it was who was fixing it but it could have been Mr. Duff. I don't know if he hired somebody to fix it. . . ."
Vykruta's complaint was in two counts. The second count was for common-law negligence and alleged that the defendant negligently manufactured, assembled, tested and maintained the hoist. At the conclusion of the plaintiff's case the defendant's motion for a directed verdict was allowed as to count II. The record does not disclose the trial court's reason for granting the motion but the court must have been of the opinion that the plaintiff either did not make out a prima facie case or was guilty of contributory negligence as a matter of law. There has been no appeal from the court's order as to count II. Whether Vykruta was guilty of contributory negligence is immaterial because no such defense is available to a defendant in an action brought under the Structural Work Act. Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236 (1914); Brackett v. Osborne, 44 Ill. App.2d 441, 195 N.E.2d 8 (1963).
We are concerned, therefore, with count I only and the principal question is whether Thomas is subject to liability under the Structural Work Act. For the purposes of the present case the pertinent provisions of the Act are as follows:
"§ 1. That all scaffolds, hoists . . . erected or constructed by any . . . corporation . . . for use in the . . . alteration . . . 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, . . .
"§ 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration . . . of any building . . . within the provisions of this ...