Appeal from the Circuit Court of Cook County; the Hon. EMMETT
MORRISSEY, Judge, presiding. Judgment affirmed.
MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT.
This was an action to recover damages for personal injuries sustained by plaintiff when he fell from a steel truss at a construction site. The jury returned a verdict in favor of plaintiff and against all defendants in the amount of $105,000, and judgment was entered thereon. Defendants appeal.
Prior to November 27, 1956, defendant Ford Motor Company (Ford) engaged defendant Cunningham-Limp Company (Cunningham), a building contractor, to erect a plant building upon property owned by Ford in Indianapolis, Indiana. Plaintiff's employer, Crawford Sprinkler Company (Crawford), was engaged as subcontractor to install the fire sprinkling system in the plant and the painting contract was let to defendant William S. Alt & Son (Alt).
General control of the construction work was exercised by Ford, Cunningham and the architect of the building. The evidence reveals that weekly meetings were held, attended by representatives of all subcontractors actively engaged in the construction and also by representatives of Ford, Cunningham and the architect. The purpose of the meetings, which were presided over by the representatives of Ford and Cunningham, was to determine the status and progress of the construction and to generally decide upon what work was to be completed by specified dates. The subcontractors' work was coordinated to avoid interference by one craft with another, and schedules were drawn instructing the subcontractors where and when they were to work. There is further evidence that Ford had safety men at the construction site who would inspect equipment and generally oversee the work being done.
At the time of plaintiff's accident the skeleton, or steel framework, and the roof of the building had been completed. Vertical steel columns supported the roof and the horizontal steel trusses which spanned the building. Four such vertical columns formed a rectangle which was denominated a bay, consisting of 2,000 square feet. The entire building was divided into four large areas, each such area consisting of 100 bays.
Alt was engaged to paint portions of the plant, including the steel trusses, and it was determined the spray method of painting would be employed. Substantial conflict exists in the evidence with respect to the manner in which the paint was being applied by Alt. Defendants' witnesses in general testified that the paint was being sprayed in a fine, mist-like spray, from 12 to 18 inches away from the surface being painted. Plaintiff's witnesses, including men from crafts other than Crawford who had been employed in the construction of the building, testified that the paint was being applied in a pencil-lead sized stream which at times would reach 20 to 30 feet from the spray gun nozzle. There is evidence that much of the area in which the painters were working was covered with paint, including tools, etc., on the floor, light bulbs, and the clothing of workmen of other crafts who were in the immediate area being painted. There is evidence that the paint, when applied to a vertical surface, would run down the side of that surface and form a pool or puddle on an adjacent horizontal surface. The top of the puddle would then dry, or "skim" as the workmen referred to the condition, leaving a thick, wet portion of paint underneath, but having the overall appearance of a totally dry area of paint. The foreman of the heating subcontractor testified that he made complaint to Cunningham and Alt of the manner in which the painters were performing their work and further requested that he be advised in advance as to where the painters were to be working so that he could schedule his work and "get the job done."
On the day of plaintiff's accident Alt's men were painting in an east-to-west direction in the building and the Crawford crew with whom plaintiff worked was installing eight-inch sprinkler mains near the inside roof of the building in a north-to-south direction. There is evidence that plaintiff's crew commenced work in a bay which was then unpainted and that Alt's painters later moved into the same bay and began "painting around" the sprinkler crew. There is contrary evidence that an Alt foreman; a short while prior to plaintiff's accident, witnessed the crew with whom plaintiff was working attempting to set up ladders against freshly painted trusses and cautioned them to work in a different bay due to the fresh paint; this was denied by plaintiff and his foreman and co-workers.
There is evidence that the Crawford crews normally employed devices termed "rolling scaffolds" from which they installed the sprinkler pipe, but that on November 27, 1956, the date of the accident, the floor of the building was covered with building materials, forcing the plaintiff's crew to use the steel trusses, ladders and movable "kickboards" or "catwalks" to install the pipes. The ladders were used for access to the trusses and kickboards from the floor. It appears that the lower lip of the steel trusses had the shape of an inverted "T" and that there was enough space on the horizontal portion of the lip to hold a man's foot. Crawford's men walked on the lip of the trusses to install the pipes, or placed the kickboards on the lips of parallel trusses when they had to work in the center of a bay. Prior to his accident plaintiff was working on a kickboard installing a length of pipe. He attempted to step onto the lower lip of the truss, either to secure an end of pipe or to descend to the ground, when his foot slid on newly painted steel. Plaintiff fell 20 feet to the concrete floor below, sustaining substantial injuries to his head.
Plaintiff's foreman and three other disinterested witnesses, including the deputy sheriff who investigated the accident, testified that shortly after the accident they inspected the area on the steel truss where plaintiff placed his foot and observed a puddle of paint which had skimmed or dried on the surface. The skim had been torn off, exposing the wet paint underneath.
Defendants first maintain that judgment should have been entered for them as a matter of law because plaintiff was guilty of contributory negligence when he stepped onto the newly painted steel truss and further because defendants committed no wrongful act which caused plaintiff's injuries.
It should be noted at the outset that the law of the State of Indiana, the situs of the accident, must govern the substantive rights and obligations of the parties involved. Beers v. Indianapolis Forwarding Co., 43 Ill. App.2d 303, 308, 193 N.E.2d 473. Although this action was initially instituted under a dual theory of defendants' violation of the Indiana Dangerous Occupations Act and the Indiana Scaffold Act, the latter theory was abandoned and reference thereto stricken from the pleadings.
Section 20:304 of the Indiana Dangerous Occupations Act (Acts 1911, c 236, § 4, p 597; Burns' Ind Stats Ann, 1964 Repl, c 3) provides in pertinent part:
"It is hereby made the duty of all owners, contractors, subcontractors, corporations, agents or persons whatsoever engaged in the care, operation, . . . construction, erection, . . . painting, . . . of any building, . . . factory or business of whatsoever kind, or in the erection, repair or operation or management of any machinery, mechanism, or contrivance, . . . or in the manufacture, operation, preparation, transportation, production, marketing or use of any dangerous or other appliance, substance, commodity or article, to see and to require that all metal, wood, . . . all contrivances, and everything whatsoever used therein are carefully selected, inspected and tested, so as to detect and exclude defects and dangerous conditions, and that all scaffolding, staging, hoists, . . . or temporary or permanent structures, machinery, appliances, tools, mechanisms and all contrivances used are amply, adequately and properly constructed, to bear all weight and adapted to perform the services and meet the requirements for which they are designed or used with safety, . . .; and, generally it shall be the duty of all owners, managers, operators, contractors, subcontractors, and all other persons having charge of, or responsible for, any work, mechanism, machinery, appliance, building, factory, plant, means, employment or business of whatsoever nature involving risk or danger to employees, or to the public, to use every device, care and precaution which it is practicable and possible to use for the protection and safety of life, limb and health, limited only by the necessity for preserving the reasonable efficiency of such structure, ways, work, plant, building, factory, elevator, cars, engines, machinery, appliances, apparatus, or other devices or materials without regard to additional cost of suitable materials or safety appliances, or safe conditions or operations, the first concern being safety to life, limb and health."
[2-4] It is apparent that the Indiana statute is broad enough to impose the duty upon all three defendants to see that no defects in any phase of the construction operations, including the scheduling of the work and the painting of the building, should involve a risk of danger to the men on the job. There is evidence that Ford retained control of the construction work by means of the weekly meetings, setting up of work schedules, and the employment of safety men at the job site. Likewise there is evidence that Cunningham had direct control over the construction operations not only as the general contractor, but also in the participation with Ford in the scheduling of the work on the building. Finally, there is evidence that Alt improperly applied the paint, causing it to form in puddles on surfaces used by men of other crafts in the performance of their duties. Under these circumstances the jury could properly have found all three defendants fall within the purview of the statute and to have breached the respective duties imposed thereby. Although defendants state, ...