Appeal from the Circuit Court of Cook County; the Hon. ABRAHAM
BRUSSELL, Judge, presiding. Reversed and remanded with
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 4, 1970.
Plaintiff, James Patrick O'Leary, filed a one-count action against defendant, Seco Construction Company, alleging a violation of the Structural Work Act. The complaint was later amended to include a second count in common-law negligence. Seco then filed a third-party action for indemnity against plaintiff's employer, Avondale Engineering Company. The jury returned a verdict of $75,000 in favor of plaintiff and a not guilty verdict in favor of third-party defendant. The trial court denied Seco's motions of judgment notwithstanding the verdict in the original action and in the third-party action, but granted new trials in both causes.
Third-party defendant Avondale then filed a notice of appeal. Subsequently, Avondale and O'Leary filed petitions for leave to appeal from the order of the trial court granting new trials and leave was granted on both petitions, 51,907 and 51,908. The original notice of appeal claimed by Avondale was then docketed as cause 51,943 and consolidated with the two petitions.
Seco, as respondent to plaintiff's petition and respondent-cross appellant as to third-party defendant's petition and appeal, seeks review of the trial court's denial of its motions for judgment notwithstanding the verdict.
The facts of the case reveal that in June 1958 Seco entered into a contract with the Federal government to perform certain reconstruction work at the United States Post Office building located at Canal and Harrison Streets in Chicago. Seco subcontracted electrical work to third-party defendant Avondale. Since Avondale was to remove certain electrical fixtures from the ceilings to afford space for new conveyors, scaffolding was brought to the jobsite. The sections of scaffolding consisted of tubular steel about 5 or 6 feet in height. They were to be stacked one on top of the other to the desired height. The lower part of the upper section is wider than the upper part of the lower section, so that one section can be inserted into another. There are holes through which pins are inserted. These pins consist of 4-inch lengths of metal 1/2 inch in diameter hinged in the center with a head at one end. The plaintiff's foreman had ordered extra safety pins which never arrived.
Plaintiff and a fellow worker, Kenneth Quick, brought two sections of scaffolding from the first floor to the fifth floor on the evening of Sept. 11 or the morning of Sept. 12, 1959. The ownership of this scaffold was never determined. On Sept. 12 plaintiff and Quick started to erect the scaffold to the desired height. Plaintiff testified that there was a lack of safety pins, and that, consequently, the upper and lower sections were fitted into each other but were not fastened together with the pins. Plaintiff's foreman testified that plaintiff never complained of the lack of pins, and Arthur J. Siegel, d/b/a Seco Construction Company, testified that he never inspected the scaffolding on the jobsite. During the process of erection of the scaffold, the plaintiff scaled the scaffold, having one foot on the top bar of the lower section and holding onto the top bar of the upper section. When plaintiff reached out with his other hand to grab a plank which Quick was pushing over to him, the scaffold moved erratically and plaintiff fell to the floor, sustaining the injuries complained of.
Plaintiff then filed this action against Seco who instituted the third-party action against Avondale.
Plaintiff contends that the trial court erred in granting Seco a new trial in the primary cause. In support of this position plaintiff takes exception with the reasons given by the trial judge in granting the new trial and contends:
(1) The clauses of the Seco-General Services Administration contract were properly admitted into evidence and limited to the issue of "control" under the Structural Work Act.
(2) Even if the above were not so, the contract had wider applicability and could have been used to show Seco's duty under the common-law negligence count.
(3) There was no reason to assume, as did the trial judge, that Ashurst, Seco's superintendent, would have testified differently if present in court.
(4) There was sufficient medical evidence to give the jury a reasonable basis for calculation of damages.
In reference to plaintiff's first point, Seco maintains that the Seco-Avondale subcontract and not the GSA contract was germane in showing "control." We find no merit in Seco's contention in view of Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247 (1965) and Dinschel v. United States Gypsum Co., 83 Ill. App.2d 466, 228 N.E.2d 106 (1967).
Seco next contends that many of the provisions of the GSA contract admitted into evidence did not bear on the issue of "control," but imposed certain contractual obligations on Seco, the benefit of which inured to GSA and not third parties. Seco further contends that these provisions prejudiced their defense of the case.
In Larson v. Commonwealth Edison Co., supra, the court was asked to rule on jury instructions in an action based on the Structural Work Act. The court stated at page 321:
"While it may be conceded that some of the decisions in the jurisdiction involving the Scaffold Act appear to have equated `having charge' with `supervision and control' in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term `having charge of' is a ...