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Pantaleo v. Gamm

FEBRUARY 17, 1969.

NICHOLAS J. PANTALEO, PLAINTIFF-APPELLEE,

v.

STANFORD GAMM AND JULIAN ROMANE, D/B/A GAMM CONSTRUCTION COMPANY, DEFENDANTS-THIRD PARTY PLAINTIFFS-APPELLANTS,

v.

PETER J. PASSANTINO, ET AL., THIRD PARTY DEFENDANTS.



Appeal from the Circuit Court of Cook County; the Hon. IRWIN COHEN, Judge, presiding. Affirmed.

MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.

Nicholas J. Pantaleo, an employee of the defendant's, roofing subcontractor, brought the present action against the general contractor, Stanford Gamm and Julian Romane d/b/a Gamm Construction Company (hereinafter referred to as general contractor), for injuries sustained while riding on a materials hoist. The plaintiff based his cause of action upon an alleged violation of sections 1 and 9 of the Structural Work Act (Ill. Rev Stats 1967, c 48, pars 60, 69). *fn1 The defendant general contractor, in turn, brought a third-party action against the roofing subcontractor, the plaintiff's employer, for contribution or indemnification. The two actions were severed for trial and a verdict in favor of the plaintiff for the sum of $66,000 was returned by the jury in the first action. The third-party action was then submitted to the same trial judge, but without a jury, upon the record of the plaintiff's trial plus the testimony of one additional witness. The trial judge found for the third-party defendant and against the general contractor.

The general contractor appeals from the judgment on the verdict and the denial of the post-trial motions in the first cause (General Number 52,175). In the event the judgment in favor of the plaintiff in the first cause is upheld, the defendant appeals from the judgment of the trial judge in the second cause in favor of the third party defendant (General Number 52,290). We granted permission to consolidate the two appeals. No questions are raised on the pleadings.

The record reveals that the defendant contracted to build an addition to a synagogue at 3535 West Foster Avenue in Chicago. The contract read in part that:

[T]he general contractor shall provide all labor and material necessary to complete the construction of the building. . . .

To furnish and maintain all equipment, such as temporary stairs, ladders, ramps, scaffolds, hoists, runways, derricks, shoots, elevator, as necessary for the proper execution of the work of all contractors. . . . The contractor shall take all necessary precautions for the safety of the employees on the work, and shall comply with all applicable provisions of the State, Federal, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about, or adjacent to the premises where the work is being performed. . . .

. . . shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public, and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hoists, well holes. . . .

The general contractor retained the masonry, carpentry, and cement jobs and subcontracted all of the other work. Hersch Quality Roofing, Inc. (hereinafter referred to as Hersch) was employed by the general contractor as the roofing subcontractor.

On August 9, 1962, the subcontractor Hersch began work on the roof of the synagogue addition, thirteen days after anyone from the general contractor had been on the job site. That same day the injury that gives rise to the case at bar was sustained. The plaintiff, an employee of Hersch, jumped on top of some rolls of roofing paper which he and another roofer had placed on the materials hoist. The roofing foreman then raised the hoist. The rolls had been stacked on the platform of the hoist to a height of four feet. As the hoist ascended to the roof the hoist began to shake and the plaintiff lost his balance. He grabbed the cable of the hoist and his hand passed through the top cable pulley amputating four fingers. *fn2

Harold Schaefer, an employee of Hersch, testified that he and another employee loaded a truck with roofing material on the morning in question and arrived at the project before 8:00 a.m. He stated that he did not bring a hoist or a scaffold with him and he said that he did not see any stairways in or about the building. Schaefer also said that he did not bring any ladders of sufficient length to reach the roof of the building. He testified that Peter Passantino, his foreman, cranked up a small gasoline engine hoist which was on the premise and which was not locked. The hoist extended six feet above the roof of the addition. Both Schaefer and the foreman rode up to the roof. Schaefer swept the roof and then came back down on the hoist. He said he then helped the plaintiff stack rolls of roofing material on the hoist. The rolls were secured, he stated, by two pieces of wood used as wedges. Schaefer further testified that he began another task when his attention was drawn to the hoist because of an unusual noise. "It was bouncing up and down, chattering as it went up." Schaefer said he saw the plaintiff squatting down a little while on top of the rolls. He then observed the plaintiff lose his balance when the hoist was fifteen to eighteen feet above the ground and grab the cable to steady himself, before he was injured.

Plaintiff Nicholas Pantaleo testified that when he came to the construction site on the morning of August 9, he saw someone riding to the roof on the materials hoist. He then rode up to the roof in a trial run with his foreman, Peter Passantino, operating the hoist. The plaintiff got off the hoist at roof level and changed into his work clothes. When the plaintiff and his foreman came down again, the plaintiff gathered some tools together and then began loading rolls of roofing material on the hoist with the help of Schaefer. After Schaefer had wedged the rolls the plaintiff climbed on top of the roofing material. The foreman Passantino operated the hoist. The plaintiff stated that when the hoist was halfway to the roof "it started to shake violently" and "I felt that I was going to lose my balance so I then turned instinctively and grabbed the cable." Immediately thereafter the plaintiff's glove got caught in the pulley and two fingers on his left hand were severed. In an apparent attempt to lower the hoist the roofing foreman operated the hoist in such a way as to cause the plaintiff's hand to pass completely through the cable pulley and as a result two more fingers were severed.

We first consider the defendant general contractor's appeal from the judgment in favor of the plaintiff Pantaleo. The defendant contends that (1) the verdict is not only against the manifest weight of the evidence, but has no probative evidence to support it and the trial court should have directed a verdict for the defendant; (2) it was prejudicial error to refuse defendant's instruction embodying defendant's theory of the case; and (3) the verdict is excessive and is the cumulative result of all the prejudicial errors committed and particularly of the prejudicial error committed in giving plaintiff's instruction which permitted the jury to find loss of present and future profits as damages solely upon evidence of plaintiff's checking account.

In support of the defendant's first contention that the verdict was against the manifest weight of the evidence and that it was entitled to a directed verdict, the defendant argues that there is no evidence that the general contractor knew that anyone was using the materials hoist as a passenger elevator or that permission was granted for such a use.

A similar claim was made in Lawler v. Pepper Const. Co., 33 Ill. App.2d 188, 178 N.E.2d 687. In Lawler the defendant was a subcontractor engaged by the American Glass Company to remove sashes and molding from around store windows. There was evidence in the case that the defendant's employees left a scaffold on the job site. When some metal workers employed by the American Glass Company came to the job they used the scaffolding and the plaintiff was injured. The defendant's foreman testified that he did not see the metal workers use the scaffold in question and that in any event, the metal ...


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