Appeal from the Circuit Court of Cook County; the Hon. SAMUEL
B. EPSTEIN, Judge, presiding. Affirmed in part and reversed and
remanded in part.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 8, 1967.
This is an appeal by plaintiff from a judgment in favor of defendant in a common-law action for personal injuries based upon negligence and under the Structural Work Act of Illinois (commonly called the Scaffold Act). (Ill Rev Stats 1963, c 48, par 60 et seq.)
The plaintiff, Lester Sola, was in the employ of Fitzsimons & Connell Dredge & Dock Company on June 17, 1957. At the time he was twenty-five years of age and in good physical condition. He was employed as a member of a pile driving crew which was then engaged on a job at the City of Chicago filtration plant under construction just east of the Outer Drive and north of Grand Avenue and Navy Pier in Chicago.
Relevant parts of the contract between the City and the contractor, as read in evidence, included the following:
"`Definition of Terms.' Engineer means Commissioner of Public Works of the City of Chicago, or Chief Engineer of the Bureau of Engineering of the Department of Public Works of the City of Chicago, or any other person designated by either of them to be the Engineer in charge of all or any part of the work.
"Precautions and Safety. The Contractor shall take any precautions that may be necessary to render all portions of the work secure in every respect or to decrease the liability of accidents from any cause, or to avoid contingencies which are liable to delay the completion of the work. The Contractor shall furnish and install, facilities to provide safe means of access to all points where work is being performed and make all necessary provisions to insure the safety of workmen and of engineers and inspectors during the performance of said work.
"Precautions shall be exercised at all times for the protection of persons (including employees) and property. The safety provisions of applicable laws, building and constructions codes shall be observed.
"The Contractor shall employ and assign to work on this contract only, a qualified technical engineer satisfactory to the Chief Engineer, to act as contact man with the Engineer and to set and maintain the lines and grades necessary for the proper performance of the work under this contract.
"As the work progresses, changes or modifications in such procedure and construction schedule, or in such methods, structures and equipment may be required by the Engineer.
"The Engineer may disapprove and reject or require modification of any proposed or previously approved order of procedure, method, structure, or equipment, which he considers to be unsafe for the work hereunder, or for other work being carried on in the vicinity, etc."
The mechanical equipment used in the pile driving operation consisted of a crane, a boiler for steam, a steam driven hammer, and a bulldozer to move the piles to the crane. The crane lifted the piles into position where they were to be driven. Attached to the crane was the pile driver. Basically, the piles were put into leads which were the tracks which the piles were to follow. The pile driving hammer consisted of a head and a ram. The ram exerted steam driven pressure on the head which then struck the pile to drive it down. Upon completion of this phase of the operation, the head was steam driven up to meet the ram and thus again be in the driving position. All of this equipment was controlled by a crane operator seated in the cab of the crane. It was his job to perform the actual driving operation. This man was a Fitzsimons' employee and under the general supervision of a Fitzsimons' foreman.
The city of Chicago, the owner of the construction site, had an engineer on the job who was to see that the piles were driven in accordance with plans and specifications, and that they were properly driven and installed so as to adequately perform their functions. The engineer determined the bearing capacity of the piling by counting the number of times the hammer struck for each foot the pile was driven into the ground. Chalk marks that he placed on the leads allowed him to determine the number of strikes per foot.
On June 17, 1957, while the crane operator was away from his cab, Morgan, the City engineer, began to mark the leads on which prior marks had been obliterated. After placing markings as high as he was able, he asked Sola to reach up and make the higher markings, because the latter ...