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Topel v. Porter

MAY 9, 1968.






Appeal from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Affirmed in part and reversed in part.



In this case defendant Edward C. Porter, individually and as Trustee under Trust Agreement known as Porter Realty Trust, obtained a directed verdict of not guilty at the end of the plaintiffs' case, plaintiffs obtained money judgments against Price Brothers, Inc., judgment was entered in favor of defendant Otis Elevator Company upon the jury verdict, a judgment was entered in favor of counterdefendant Otis Elevator Company on the counterclaim of Price Brothers, Inc. against it, and third-party plaintiff Price Brothers, Inc. obtained a judgment upon a jury verdict against third-party defendant Westinghouse Electric Corporation.

This action arose out of an accident on the premises at 4301 West Madison St., Chicago. Those premises were owned by Porter Realty Trust, and Price Brothers, Inc. had been the exclusive tenant thereof for more than ten years prior to the accident. Under the tenancy Price Brothers was solely responsible for maintenance and repairs, although the owner paid for major or structural alterations.

On the property was a freight elevator which had been in the building since 1918. Plaintiffs, Topel and Bialek, were employees of Westinghouse Electric Corporation and, in that capacity, came on the premises to remove and repair a drum from the elevator.

Price Brothers had employed the services of Otis Elevator Company for some years prior to the accident. There was a service contract between the companies whereby Otis was to undertake the weekly maintenance of the elevator for a fee of $32 per month. This contract provided for only the small routine upkeep. If any larger items of service were called for, Otis was to notify Price Brothers and submit a price estimate therefor. The last written service contract between the two introduced into evidence covered the period of October 1, 1955, to July 31, 1956. However, it appeared that the agreement was continued until January 15, 1957, when Otis cancelled the contract.

In 1952 Otis reroped the safety device on the elevator, and, according to the ordinary business records, safety checks were made in 1952, 1954 and 1955. The last safety check was in mid-1955. In December, 1956, Otis wrote to Price Brothers and recommended resocketing of hoisting ropes, testing of counterweight ropes and a safety-device check. The letter stated in part:

"Our experience has shown that it is advisable to test car safety devices annually, in order to determine if they are functioning properly. This cannot be determined by a visual inspection in the field and as we have no record of making safety tests on your elevator the past year, we recommend that such tests be made."

Evidently no action was taken on that letter by Price Brothers. On January 15, 1957, Otis wrote to Price Brothers canceling their service contract because Price Brothers had elected to have another company weld a cracked drum rather than have it replaced with a new one. According to Hiatt, Price Brothers' chief engineer, from that date until the start of the work by Westinghouse, no one ever came on the premises to conduct a safety test on the mechanism. There was no evidence of routine servicing during that period (January-July, 1957).

There was no evidence as to what sort of safety tests were performed during the years 1952-1955, but witnesses stated that several types were possible: a brokenrope test, a free fall, an overspeed test, tests with loads and tests without loads. Any of these would allegedly have revealed misroping. There was also testimony that a visual inspection might not reveal such a defect inasmuch as the machinery was old and the younger men might not be familiar with it.

The contract for repair of the drum by Westinghouse was executed in March, 1957. The salesman for Westinghouse testified that during his preliminary talks with Price Brothers he was told that drum repairs were all that were necessary since they had a service contract with another company. However, in the letter of Hiatt to Westinghouse of March 13, 1957, the drum work was agreed to and there was a suggestion that they discuss a service contract to begin after the work was done. On July 16, 1957, a service contract was executed to take effect August 1, 1957.

The repair work was to be done during the annual plant vacation and was to consist of removal, repair and reinstallation of the drum. From the evidentiary descriptions it appears that the elevator machinery ran from 2-3 feet below the bottom floor to a penthouse. The drum was located in the penthouse. The car was held up by six cables. Two ran from the car to the drum, two from the drum to the counterweights and two from the car to the counterweights. The safety device is activated by a safety governor at the top of the shaft. Under the car are three sheaves, two vertical and one horizontal. The horizontal one is in the middle and measures about 14 inches in diameter. There is a manilla rope running from the governor through one side sheave, passing around the center sheave and leaving the bottom of the car by the other side sheave. From there it runs up the side of the car to another small sheave at the top of the car and then down to a tension sheave at the bottom of the pit. These ropes all run on one side of the elevator. If the rope passes through the governor at too great a speed the governor stops the rope thereby activating wedges which go against one side of the safety jaws. The other side of the jaws clamp on the rails and stop the car.

July 15, 1957, was the first day that Westinghouse was on this job. The job boss, Hadden, and plaintiff Topel were on the premises. They went up to the penthouse, drilled through the roof and hung a chain fall which they planned to use to lower the drum to the car at the fifth level so they could then lower both drum and car to the ground. The next day plaintiff Bialek was also on the job. That day they disconnected the drum to car and drum to counterweight cables. Still connected were the governor to the safety rope and the car to counterweight cables. These cables alone would support about 60% of the weight of the car.

Before the cables were removed the men constructed a sling. The car-to-counterweight cables were clamped together in a two-gripper. This consists of two plates about 3 X 12 inches with a large eyelet at the top. The cables fit in between the plates which are then held together by studs with nuts tightened on them. Once the cables were securely clamped the sling was completed by wrapping another cable two or three times around a permanent beam in the penthouse, then down through the eyelet of the two-gripper and back up to the beam. That end was wrapped several times around the beam. The loose ends were then fastened with Crosby clips. These clips were U-shaped with the saddle arrangement for the cables to lie in. Once they are in place (in opposite directions to each other) the top is laid in place and nuts are tightened for pressure. Two clips were put on that day by Bialek and the elevator hung in the sling overnight. On July 17, 1957, Bialek added a third clip to the sling. This was done under the supervision of Hadden.

They then cleared out the car and attached a hoist machine to a cable sling from roof timbers. The drum measured about 3 feet in diameter and 4-5 feet in length, and weighed 2,000-3,000 pounds. The rated capacity of the safety device was 4,000 pounds. Bialek and Topel were in the car waiting to guide the drum into position onto a dolly in the car. Once that was done Hadden intended to attach another chain hoist to the car so that it could be lowered to the ground with the drum in it. The sling they had constructed would have to be removed before the car was lowered.

However, just as the drum touched the dolly the sling gave way, the safety device failed to operate properly, and the car dropped five floors to the pit. Plaintiffs there sustained the injuries which are the subject matter of this suit. Hadden testified that when he looked at the sling which had given way he found that ...

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