Appeal from the Circuit Court of Cook County; the Hon. CHARLES
R. BARRETT, Judge, presiding. Reversed and remanded for new
MR. PRESIDING JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 8, 1969.
The case in chief was brought to recover damages occasioned by an alleged violation of the Structural Work Act by defendants Robert P. Tonietto and S.S. and E. Corporation. A third party action was brought by Robert P. Tonietto, a general contractor, against Dave Gambino, a subcontractor. In the case in chief, after a jury trial, a judgment of $50,000 was entered against both defendants. In the third party action, heard after the case in chief, the jury found in favor of third party defendant Gambino, but the court entered a judgment notwithstanding the verdict in favor of third party plaintiff Tonietto for $50,000.
Defendant Tonietto appeals from the judgment in the case in chief, and third party defendant Gambino appeals from the judgment notwithstanding the verdict entered in the third party action. S.S. and E. Corporation has not filed an appeal.
Plaintiff sued for injuries sustained on a building project for S.S. and E. Corporation while employed by Gambino, a subcontractor for Tonietto, the general contractor.
Defendant Tonietto raises three points on appeal: (1) that the court should have directed a verdict in favor of defendant or entered a judgment in his favor notwithstanding the verdict because defendant was not in charge of the work and because there is no adequate evidence of a violation of the Structural Work Act; (2) that the verdict is contrary to the manifest weight of the evidence; and (3) that the court erred in giving an instruction that the jury may consider a violation of a provision of the Health and Safety Act requiring the use of ladders on certain types of scaffolding. No question is raised as to the amount of the damages.
Third party defendant Gambino raises the single point on appeal that the trial court improperly invaded the province of the jury by arrogating to itself the prerogative of weighing the evidence despite the fact that there was substantial and credible evidence in the record to support the jury finding.
Testimony of Albert C. Jones, plaintiff:
He was in Chicago working as a bricklayer for Gambino on March 8, 1960; he had been a bricklayer for fifteen years. On that date he was constructing a wall and chimney in a building on Laramie Avenue in Cicero. He was working on a scaffold of patent scaffolding which was constructed for masonry use with steel and planks.
The scaffolding is made of pipes and cross braces to hold it together, and is overlaid with planks (2 x 8, or 2 x 10) on which the masons walk and stand to do their work. There were scaffolds five feet high on the west wall and ten feet high on the south wall. The planks on the west scaffold were bearing on the planks of the south scaffold; and the plaintiff was working on the south scaffold.
At 4:40 p.m. (quitting time) plaintiff started off the higher scaffold. In getting down plaintiff laid his level on the planking of the higher scaffolding, came down to the lower scaffolding and reached back to get his level. He then walked to a corner of the lower scaffolding, stepped on a plank, which broke, and he fell. The plank broke at a bearing where the planks on the south wall scaffold crossed the planks on the west wall scaffold.
As he lay on the floor beneath the broken scaffold he noticed that it was the plank on the lower scaffold that had broken and allowed various items to fall upon him; he also noticed that there was not another steel jack under the middle of the scaffold to help carry the weight. (A jack is a perpendicular rod that helps support planks.)
The general contractor on the job was Tonietto who was generally at the job several times a day. The witness saw no ladders anywhere on the job. He had nothing to do with the erection of the scaffold. It was erected by two laborers whom he did not supervise.
When plaintiff fell he landed on his foot doubling his leg up under him and then falling onto his back; bricks and other items fell off of the scaffold onto him. The bricks were about 2 1/4 x 8", 4 x 8" bricks (common bricks). He immediately noticed pain in his left foot and called for help.
The scaffold was erected on the subflooring, and he fell onto the subflooring from the scaffold. Subflooring is usually pine or other material of three and one-half or four foot widths; it has larger boards than the hardwood flooring. He did not observe that one of the legs of the scaffold went through the flooring.
Generally in the building of a scaffold there is a climb space left on the inside away from the wall; however, if five planks are put on the scaffold, as was done in the instant case, then the climb space is covered up.
The scaffolding that was on the job on March 8 was the same scaffolding that had been in use for the previous four weeks. He does not know if it is custom and usage to leave planking on a five foot level rest on the planking leading to a scaffold supporting the ten foot level. It was not done on the other scaffolding on this job or on the twin job next door. The scaffold on the building next door had an extra jack for support under it.
The upper length of scaffolding had only been in place about an hour and a half before the accident. It was constructed after he finished bricking the wall in order for him to get up to the chimney; until that time it had been a five foot section plus the legs. The lower scaffold on the west wall was built while he was on the ten foot scaffold working on the chimney; he did not notice the absence of the jack at that time.
The usual way to get up onto a scaffold is to use ladders. On this job he got to the ten foot level by climbing to the five foot level and then climbing to the ten foot level. (There was a model on which this was demonstrated.) The sides of the scaffold are built like a ladder and are used for climbing.
Ladders come in all different lengths. For a ten foot scaffold there should be a twelve or fourteen foot ladder which would stand out on the floor, leaning like a stairway for a person to walk up.
He does not remember testifying on a deposition that the scaffold next to the chimney had four boards on it. He does not remember telling a private investigator that the scaffold belonged to Mr. Gambino and is one normally used on his jobs; he did say that there was nothing wrong with the scaffold other than the board breaking.
He did not jump from the ten foot section to the five foot section.
Testimony of Robert P. Tonietto, defendant, called by plaintiff as an adverse witness under Section 60 of the Civil Practice Act:
He was in business on March 8, 1960, as Gregg Builders. He did remodeling and building and was involved in the construction of a building at 3220 South Laramie at that time in the capacity of general contractor. He had been hired by S.S. ...