Appeal from the Circuit Court of Cook County; the Hon. DAVID
A. CANEL, Judge, presiding. Affirmed in part, reversed and
remanded in part with directions.
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
United States Steel Corporation appeals from a judgment of $25,000 after a jury trial on plaintiff's claim for personal injuries, and also from a judgment n.o.v. in favor of third-party defendant Swindell-Dressler Corporation in an indemnity action brought by United States Steel Corporation. Plaintiff sued for injuries sustained on a building project for United States Steel Corporation at its South Chicago Works while employed by Swindell-Dressler, a contractor. *fn1
Defendant urges the following contentions in its appeal from the judgment in the negligence claim: (1) there was no evidence of negligence; (2) plaintiff failed to prove freedom from contributory negligence; (3) inconsistency in verdicts between the negligence claim and the indemnity claim; and (4) errors in the submission of instructions. Defendant also contends that the court erred in entering judgment n.o.v. for the third-party defendant.
Donald Deel, the plaintiff, testified that on June 10, 1958, he was operating a forklift truck for Swindell-Dressler Corporation in the basement of the United States Steel South Chicago Works; that on that day his foreman, McKee, asked him to move four large steel bases for the Morrison Construction Co.; that he had been working entirely in the south end of the building but that this task required him to proceed through a doorway into the northern room of the basement. He testified that two of the bases were four and one-half to five feet in diameter, and two were six and one-half to seven feet in diameter; that he conveyed the two smaller bases prior to the trip on which the injury was sustained; and that the accident occurred during the third trip about forty-five minutes after the second trip and close to quitting time.
Plaintiff testified further that when seated on his forklift his head was six to six and one-half feet off the ground; that on the trip during which he sustained the injury he was carrying one of the larger bases; that he was proceeding at approximately two miles per hour and looking straight ahead through the center of the base; that when he got to the doorway he had to raise the base to avoid materials left on the floor; that by raising the base, the mast of the forklift was elevated; that the top of the base was then nine and one-half to ten feet in the air; that he could no longer look straight through the base but had to look to both sides to avoid explosive acetylene bottles and other objects left in his path; and that he was suddenly struck in the neck by a black rubber coated cable which was one inch in diameter. He said that the cable was strung between two columns which were ten to twelve feet apart and fifteen to twenty feet north of the doorway, and that after the accident the cable was hanging neck-high but was only one foot higher at the points where it was hitched on the columns.
Plaintiff stated that he observed employees of Swindell-Dressler, Ragnar Benson, Morrison Construction and United States Steel working in the basement; that Swindell-Dressler men were working in the far south end of the basement near the conveyer belt; that United States Steel employees were welding on the south side of the doorway; and that the only people seen north of the doorway in the six days he worked there were employees of Morrison and that although they were welding they were not welding close to the doorway. Finally, the witness testified that although the cable was of the type used for welding, he couldn't be sure what it was being used for; that he had also been forced to raise the smaller bases to clear the obstacles in the area but that he did not observe the cable on the prior two trips; that he did not know whether the cable was there on the prior two trips because he was not looking up at the ceiling and that he did not see anyone working in the area between his trips.
William Faisan, a safety engineer for United States Steel, was called by the plaintiff. He testified that he was the safety engineer for United States Steel at the South Chicago Works in June of 1958; that he did not find out about the accident until February of 1959 at which time he investigated it; that in June of 1958 he was in the area where the accident occurred daily to determine safety and found that the area was well lit but could recall no overhead welding cables strung in the basement. He stated that he could not say whether there was any welding equipment in the area on June 10 but welding was going on from time to time. He said that United States Steel had used welding equipment in their work in the basement but he did not know whether employees of Morrison Construction had done any welding there. He stated that United States Steel safety rules forbade the stringing of welding cables which might foul a passage.
Hardin McKee, an employee of Swindell-Dressler, testified that he was a labor foreman for Swindell-Dressler in June of 1958; that plaintiff was under his supervision at the South Works of United States Steel; that plaintiff called his attention to the accident when he came into the basement where plaintiff was working; that he only glanced at the cable from six to ten feet away but that it looked to him like a rusty steel cable rather than a welding cable. He said that he saw only Swindell-Dressler employees in the area and that he did not remember any request from Morrison employees to move any bases.
Michael J. McCarthy, project manager for Ragnar Benson. This witness testified that William Faison, United States Steel's safety engineer, was in charge of overall safety on the job.
Henry Wolfe, superintendent of the construction storehouse of the American Bridge Division of United States Steel, testified that plaintiff's exhibit was not the size of welding cable used by American Bridge; that he had been involved in storing these goods for American Bridge since 1946 and they always used three-quarter inch rather than a one-inch cable.
Douglas Kingman, job supervisor and engineer for Morrison Construction, testified that during the period in question Morrison was installing piping in the soaking pits under a contract with Swindell-Dressler; that Morrison did welding in the basement but could not say if it was on June 10; that he did not recall seeing welding equipment or cables in the basement; that no more than one or two Morrison employees were doing welding during this period and that other companies, including American Bridge, were doing welding.
Charles Banhaam, Jr., general foreman for Morrison, testified that he was present spasmodically; that the basement was poorly illuminated; that only one or two Morrison employees were doing welding; and that Morrison strung its welding cables only on the floor.
James R. Morrison, president of Morrison Construction Co., testified that Morrison often welded pipes together; that the company never strung welding cables overhead between existing structures but always employed a special wooden frame. He said plaintiff's exhibit differed from the type of welding cables his company used in that Morrison used three-quarter inch cable and Exhibit 1 was seven-eighths inch and Morrison's cable was completely black while Exhibit 1 was black with speckles.
It should be noted that the cable introduced as Plaintiff's Exhibit 1 is not the actual cable which caused the ...