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Walsh v. Dream Builders

AUGUST 5, 1970.




Appeal from the Circuit Court of Cook County; the Hon. IRVING GOLDSTEIN, Judge, presiding. Judgment affirmed.


Rehearing denied and opinion modified November 25, 1970.

Plaintiff, Patrick Walsh, brought suit against Dream Builders, Inc. and Sigmund Levin and Morris Rapoport, doing business as Sim Construction Company, to recover damages for personal injuries which he had sustained. He charged both companies with violation of the Structural Work Act (Scaffold Act). Dream Builders, in turn, filed a counterclaim against Sim Construction, hereinafter referred to as defendants, and against plaintiff's employer, Carney Plastering Company. During trial, Dream Builders paid $6,500 to plaintiff, was voluntarily dismissed from the action and dismissed its counterclaim against defendants and Carney. Defendants' motions for a directed verdict at the close of plaintiff's case and at the close of all the evidence were denied, and the jury returned a verdict in favor of plaintiff and against defendants in the amount of $15,000. The verdict was subsequently reduced to $8,500 in order to reflect the settlement with Dream Builders, and judgment was entered in the reduced amount. Defendants' post-trial motions were denied, and they appeal.

Plaintiff was injured as the result of an accident which occurred on December 19, 1960. At the time of the accident, plaintiff, a plasterer's helper for Carney Plastering Company, was engaged in plastering work at a two-apartment building under construction at 6747 North Artesian Avenue in Chicago. Dream Builders was the general contractor on the construction, and defendants were the carpentry subcontractors.

Plaintiff's injuries were sustained when a temporary stairway at the jobsite collapsed as he stepped on it. The stairway was built like a ladder and was the only means of ingress and egress between the landing and the first floor. The stairway was about five feet in length, with four steps. The steps and stringers consisted of two-by-ten boards, were ten inches wide, and were about fourteen inches apart. There were no handrails or back supports.

Plaintiff's duties were to mix plaster outside of the building and to bring the plaster on a hod to the two plasterers inside the building. When full, a hod weighed between 85 and 100 pounds, and normally plaintiff would carry a few hundred loads of plaster each day. At about 4:00 p.m. on the day of the accident, plaintiff carried a load of plaster up to the second floor. After dumping it, he came down from the second floor to the first. As soon as he stepped on the temporary stairway leading from the first floor, the first step gave way and knocked down the other steps. The steps did not break in any way. Rather, the nails gave way and were pulled out by the stringers.

Richard Stalzer, an engineer, testified as an expert witness for plaintiff that he was familiar with all phases of building construction, including temporary stairways. Such stairways should be built in accordance with certain minimum standards. In his opinion, the stairway in question did not meet those standards. The distance between the risers was excessive; there was a failure to put in riser supports; and the cleats supporting the steps were of insufficient thickness. As a result, the nails would lose their holding power and the stringers would move laterally. Therefore, the tread would move away from the stringer and would have a tendency to collapse. Stalzer also testified that removal of the stairway and its replacement, using the same nail holes, would weaken the device and that this was bad practice.

Plaintiff and Herbert Bailie, one of the plasterers on the job, testified that when they arrived at the building to start work, everything including the temporary stairway, had been set up for them. They did not know who constructed or installed the stairway. At some jobs, it was necessary for them to construct such a stairway themselves, or use a regular ladder. Ordinarily, the temporary stairway would consist of two-by-four boards, rather than the heavier two-by-tens found on this stairway. Plaintiff also testified that he and the plasterers had moved the stairway once during the course of their work in order to plaster behind it. This had occurred about 1 1/2 days prior to the accident. He further testified that they only removed the nails holding the stairway to the building structure. They did not touch any of the nails in the steps of the stairway.

Only plasterers were working at the building at the time of the accident. Under the construction contract, defendants' work was interrupted to allow the lathers and plasterers to complete their part of the construction. Accordingly, the carpenters who had been working throughout November stopped work on December 10 and returned to the job on January 4, 1961. After defendants' employees left the instant job on December 10, the lathers completed their work, and on December 15, plaintiff and two plasterers started their work.

Francis Carney, plaintiff's employer, was called as a witness by plaintiff, and testified that neither he nor any of his workers installed the stairway. After he testified further that he did not know who had installed it, the trial court found him to be a hostile witness and permitted counsel for plaintiff to question him about a prior inconsistent statement made at a discovery deposition prior to trial. At that deposition, Carney had stated that the stairway was erected by the carpenters. He subsequently stated at the deposition that he understood that the stairway was erected by the carpenters, and that usually it was carpenters' work.

Carney subsequently testified that he also was the lathing contractor on the job, and had subcontracted the lathing work. Prior to the injury to plaintiff, he had inspected the jobsite. He visited the premises before the lathers commenced work and also while they were on the premises. At those times, he used the temporary stairway to get to the first floor. Carney further testified that it was the same stairway which his plastering employees were going to use in their work. He found the stairway to be secure and solid. In his opinion, the lumber used on the stairway was so heavy that it would require the use of an electric saw and ruler for its construction. He repeated that he did not know who installed the stairway in question, but stated that it was carpenters' work.

Morris Rapoport, a partner of defendants, testified as an adverse witness that he supervised the carpentry work on this job. His men had erected two temporary stairways for this construction, one running to the first floor and one to the second floor. The stairways were constructed by his men on the premises. When his carpenters temporarily stopped work in December, one of his employees took both stairways from the jobsite. Rapoport was present when this was done. When his carpenters returned to complete their work in January, there were no stairways present on the premises.

Benjamin Weiss, an officer of Dream Builders, testified as an adverse witness that as general contractor, he visited the premises occasionally. He never saw the stairway in question. It was his practice to have each trade bring its own equipment and remove it when their work was done. He also testified that carpenters ordinarily did not install temporary stairways for the use of other trades.

On appeal, defendants contend that the trial court erred in not entering judgment in its favor, since plaintiff failed to prove that defendants had violated the Scaffold Act. In the alternative, defendants argue that they are entitled to a new trial because the verdict was against the manifest weight of evidence, that the trial court committed reversible error in allowing Carney to be cross-examined by plaintiff as a hostile witness, and that the trial court ...

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