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Huckabee v. Bell & Howell

NOVEMBER 26, 1968.

FRANCIS HUCKABEE, PLAINTIFF-APPELLEE,

v.

BELL & HOWELL, INC., A CORPORATION, GUY M. ZETTLER & CO., A CORPORATION, DEFENDANTS, AND SAFEWAY STEEL SCAFFOLDS CO. OF ILLINOIS, A CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. DONALD J. O'BRIEN, Judge, presiding. Judgment reversed and cause remanded.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

Rehearing denied January 3, 1969.

The plaintiff, Francis Huckabee, brought suit against Safeway Steel Scaffolds Co. of Illinois, Bell & Howell, Inc., Guy M. Zettler & Co., and J. Emil Anderson & Son, Inc. to recover damages for personal injuries that he had sustained. J. Emil Anderson & Son, Inc. paid the sum of $10,000 to plaintiff, received in exchange a covenant not to sue, and was voluntarily dismissed from the action. Guy M. Zettler and Bell & Howell were also dismissed by plaintiff. The plaintiff charged Safeway Steel Scaffolds, hereinafter referred to as defendant, with violation of the Structural Work Act (Scaffold Act) and with common-law negligence. The defendant's motions for a directed verdict at the end of plaintiff's case and at the close of all the evidence were denied, and the jury returned a verdict in favor of plaintiff and against the defendant in the amount of $80,000 and judgment was entered thereon. Defendant's post-trial motions were also denied, and defendant brings this appeal.

Plaintiff was injured as a result of an accident which took place on Friday, March 29, 1957. At the time of the accident, plaintiff, a painter for the Guy M. Zettler & Co., was engaged in painting the Bell & Howell plant located at 7100 McCormick in Chicago. Anderson was the general contractor supervising the construction of an addition to the plant, and Zettler was the painting sub-contractor.

Plaintiff and his co-worker Emery Nissen were engaged in painting certain pipes and steel structures below the ceiling. They were able to reach these pipes by use of a scaffold tower fifteen feet above the floor. This scaffold was constructed of tubular steel members and was mounted on four wheels or casters so that it could be rolled from place to place. The four wheels were equipped with lever-operated brakes to prevent the scaffold from rolling. The brake and wheel comprised a single unit, which had a four-inch stem that was inserted into the tubular, vertical scaffold member.

The component parts of the scaffold had been brought to the job site in January 1957 by a Zettler employee in one of its trucks. The disassembled parts were then assembled into five separate scaffolds of the same type by the Zettler employees. All five scaffolds remained on the job through April 4, 1957, when the job was completed. Nissen and another employee of Zettler, Lang Ward, who did not testify, had disassembled the scaffold involved in the occurrence, moved the parts to the room in which the accident happened, and there reassembled the parts into a single scaffold. Nissen and Ward had used the scaffold uneventfully for two days in March.

Plaintiff had begun working at the Bell & Howell job in January, but was sent to another site for a period of time. On Thursday, March 28, the day before the accident, the plaintiff and Nissen began working together on the reassembled scaffold. On that day, the scaffold moved twice while they were using it. After it moved the first time, both men descended, adjusted the brakes and found them working well. Nissen returned to the top of the scaffold when it moved again and one of the wheels came off. The plaintiff held up the corner of the scaffold from which the wheel came off while a man who was sweeping the floor reinserted the wheel; this man did not testify. Afterwards, Nissen and the plaintiff resumed work on the same scaffold because "it seemed to be fine" after they checked it, and plaintiff testified that he did not know of any other scaffolds in the area. The scaffold was always on a level floor.

They used the same scaffold all next morning, the day of the accident, without incident. After lunch they checked the brakes and resumed work. About ten minutes later, the scaffold tipped and then fell to the floor. Nissen managed to hang on to a sprinkler pipe hanging from the ceiling but plaintiff fell to the concrete floor with the scaffold landing on top of him. As a result, he sustained severe and permanent injuries, including a fractured jaw and fractures of both wrists.

Dominic Pomponio, an employee of Bell & Howell, testified that, although he did not witness the accident, he heard the crash and ran to the scene. He saw the scaffold lying on the floor with a caster missing from one of the corners. He also testified that he had seen two painters working on a scaffold the day before the accident, and observed them moving the scaffold by pulling themselves along on the overhead steelwork; however, he did not know whether plaintiff was one of the painters.

Plaintiff denied that he ever moved the scaffold by use of the beams along the ceiling. He stated that he and Nissen moved the scaffold by descending, disengaging the brakes on the wheels, and pulling the scaffold to the next position. Plaintiff and Nissen also testified that they could not explain why the scaffold fell. The scaffold involved in the accident was used without incident until the job was completed about three days after the accident.

During the year of 1957, defendant was in the business of leasing component parts of scaffolds, and Zettler was one of its customers. On the date of the accident, defendant had component parts for one scaffold leased to Zettler under an agreement dated February 14, 1957. Although generally the defendant inspected the scaffold parts before leasing them to Zettler, Peter Gilbertson, vice-president of the defendant company, testified that he had "no way of knowing" whether this particular scaffold was inspected. He further testified that there was no provision in the agreement with Zettler for adjustment of the equipment on the job, while it was out of defendant's possession. He also testified that defendant had no contact with the component parts from the time they were leased until they were returned; that the parts were not leased for any particular job; and that defendant would not be able to determine if the component parts were moved from one job to another.

Plaintiff introduced into evidence, without objection, defendant's answers to two interrogatories. The answers stated that defendant was the owner of the scaffold involved in the occurrence, and that the defendant had leased the scaffold in question to Zettler. Also at trial, Gilbertson testified that a photograph of a scaffold which was introduced in evidence was the same type of scaffold that was furnished by defendant to Zettler, and that if the component parts were assembled it would comprise a structure similar to that shown in the photograph. He further testified that the parts leased to Zettler were returned to defendant on May 6 without any comment regarding their condition, and that these parts were in good condition when returned to defendant.

On this appeal, defendant urges several grounds for reversal. One of his contentions is that there is no liability as a matter of law under the Scaffold Act, Ill Rev Stats 1965, c 48, §§ 60-69, because it was not shown that defendant was in charge of the work.

In the instant case, the trial court concluded that the supplier of a defective scaffold is liable under the Scaffold Act whether or not he was in charge of the work. Accordingly, the court rejected defendant's tendered instruction that plaintiff had the burden of proving that defendant was in charge of the work. In refusing this instruction the trial judge stated that if he thought that defendant had to be in ...


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