Appeal from the Circuit Court of Cook County; the Hon. WILBERT
F. CROWLEY, Judge, presiding. Judgment affirmed.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Plaintiff brought an action for personal injuries under the provisions of the Structural Work Act (Ill Rev Stats, c 48, §§ 60-69 (1957)). Nick Michale, the general contractor, was originally named as a defendant but on February 14, 1967, his death was suggested and Norman Goldman, Administrator, was substituted as the defendant.
Plaintiff recovered a verdict of $50,000. Defendant appeals contending:
(1) that the court erred in not directing a verdict for defendant and in refusing to grant defendants' motion for a judgment notwithstanding the verdict since the evidence failed to establish a cause of action under the Structural Work Act; and
(2) that the court erred in admitting into evidence the testimony of a witness whose identity was not furnished in plaintiff's answers to interrogatories.
James Shwatal, witness on behalf of plaintiff, testified to the facts of the accident. Plaintiff was employed during the summer as a bricklayer's helper for a sub-contractor at the time of the occurrence. Shwatal was also employed by the same subcontractor as plaintiff and they were engaged on June 4, 1959, in supplying brick and mortar to bricklayers who were erecting the walls of the structure. A scaffold was set up along the outer length of the wall for a distance of approximately fifty-five feet. The scaffold consisted of a series of tubular steel supports upon which wooden planks were laid. The planks were approximately a foot wide, twelve feet long and two inches thick. The scaffolding was arranged to provide two working levels or tiers. The lower level was five to six feet above the ground and consisted of five planks. The upper level was two to two and one-half feet higher than the first level and consisted of three planks.
Shwatal worked on the ground level and passed up bricks and mortar to plaintiff who worked on the lower tier and in turn would pass up the bricks and mortar to the upper tier to the bricklayers who were engaged in building the wall. Shwatal would lift a shovelful of mortar from a source at ground level and deposit it on a mortar plate situated on the lower level or tier and plaintiff would then scoop off mortar with his shovel from the mortar plate to a mortar plate on the upper tier or level. In the process of lifting a shovelful of mortar, plaintiff stepped on the mortar plate from which he was removing mortar and the plate tipped causing him to fall to the ground and sustain injuries. The mortar plate was made of flexible steel about three feet square and weighed from twenty to thirty pounds. Plaintiff stepped on that portion of the mortar plate which was overhanging the edge of the outermost plank of the platform by approximately eight inches.
It is noted that the upper level consisted of three planks, with the innermost next to the wall of the building and that the lower level consisted of five planks, with the innermost likewise next to the wall. Thus, the lower level, extended beyond the one above by a distance equal to the width of two planks or about two feet. It was on this extended portion of the lower level where the mortar plate was situated and where plaintiff worked.
Plaintiff's wife, mother, brother and sister all testified to his general good health before the occurrence and his subsequent manifestation of epilepsy and injury to his shoulder. There also was testimony that plaintiff was a law student at the time of the accident and had later passed the bar examination. Plaintiff was barred from testifying by reason of the death of Nicholas Michale.
Defendant did not adduce any evidence, but rested after plaintiff's case.
Defendant initially contends that plaintiff does not have a cause of action under the Act and argues that there is no evidence that the scaffold was unsafe in its construction or erection, but was eminently sturdy. Defendant also argues that the placing of ordinary tools and equipment upon a stationary platform cannot logically or semantically be construed to constitute an operation of the scaffold, especially where tools and implements, as here, a mortar plate, are placed upon an otherwise sound and sturdy scaffold.
In support of his contention, defendant cites Spiezio v. Commonwealth Edison Co., 91 Ill. App.2d 392, 235 N.E.2d 323 (1968) and Thon v. Johnson, 30 ...