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Ferrari v. Brannock

MARCH 9, 1971.

ALBERT FERRARI, PLAINTIFF-APPELLANT,

v.

KENNIS BRANNOCK ET AL., DEFENDANTS-APPELLEES — (JOSEPH BORN, DEFENDANT-SEPARATE APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. COURTNEY, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 14, 1971.

Plaintiff, Albert Ferrari, instituted a cause of action for negligence against defendant, Joseph Born, and Born's employers, defendants, Kennis and Mary Brannock.

At the close of all the evidence the trial court directed verdicts in favor of the Brannocks. The jury returned a verdict in favor of Ferrari and against Born in the amount of $10,500 upon which judgment was entered. Ferrari appeals from the order directing verdicts in favor of the Brannocks and Born appeals from the judgment entered against him and in favor of Ferrari.

The Brannocks owned a three-story building, the first floor of which was divided into five or six store spaces and leased to commercial enterprises. Ferrari leased one of the store spaces from the Brannocks to conduct his grocery business.

Due to the nature of Ferrari's business a large number of wood and cardboard boxes would accumulate behind the store each week. Since the lease agreement contained no provision for the removal of trash, Ferrari paid Born, the Brannocks' janitor, fifteen dollars a month to dispose of the boxes. Born would dispose of the boxes by burning them in the incinerator and the boiler which were both located in the basement.

The boiler was situated in a pit approximately three feet deep surrounded by a cement wall. The boiler was in constant operation providing steam heat in winter and hot water the entire year. During the summer months the switch was "pulled" so that the boiler would not heat the building. Born testified that when he burned boxes in the boiler during the summer, he would only place a few in at a time to prevent the pressure from rising too high. The boiler was equipped with a pressure gauge and when it registered a high pressure, Born would discontinue placing boxes into the boiler until the pressure waned.

Born continued to burn the boxes for Ferrari until the winter of 1960-61 when Ferrari refused to increase his remuneration from fifteen to twenty-five dollars a month. Subsequently, Ferrari burned the boxes himself. Initially, Ferrari used only the incinerator to burn the boxes. When the boxes were wet he would store them to dry before placing them in the incinerator.

Ferrari testified that Born, upon seeing him utilize this procedure, advised him to burn the wet boxes in the boiler. However, Born testified that while he knew Ferrari was burning the wet boxes in the boiler, he never advised him to do so.

Kennis Brannock testified that he had previously told Ferrari to burn the boxes and was aware of the fact that Ferrari was burning them in the basement. However, he had never told Ferrari not to use the boiler to burn the boxes.

On August 2, 1961, the boiler was switched to its summer position thereby preventing the pressure from escaping into the heating system. Ferrari placed four to six wet boxes in the boiler and after closing the door he walked four or five feet away. Soon thereafter Ferrari heard an explosion and noticed smoke, fire and ash coming toward him. After going upstairs and calling the fire department, he returned to the basement where the visibility was now somewhat decreased due to smoke and ash. However, he no longer saw any evidence of fire or flame. He approached the boiler and stepped into the pit. Due to the explosion the pit was now full of scalding hot water and Ferrari sustained severe burns about the ankles necessitating hospitalization.

Ferrari then initiated the instant suit against defendants resulting in the judgment against Born and the directed verdicts at the close of all the evidence in favor of the Brannocks. On appeal Ferrari contends that the court erred in directing verdicts in favor of the Brannocks and that therefore he is entitled to a judgment in his favor or in the alternative, a new trial.

On appeal Born contends that the trial court erred in entering judgment against him and in favor of Ferrari, since he owed no duty to warn Ferrari with respect to the boiler's summertime use, and ...


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