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Nowicki v. Union Starch And Refining Co.

JULY 30, 1971.




APPEAL from the Circuit Court of Madison County; the Hon. FRED P. SCHUMAN, Judge, presiding.


Rehearing denied September 21, 1971.

The defendant, Union Starch and Refining Company, appeals from a judgment in the sum of $65,000.00 in favor of the plaintiff, Henry S. Nowicki, entered upon a verdict in the circuit court of Madison County in plaintiff's suit for personal injuries.

Plaintiff, Henry S. Nowicki, sued to recover damages for personal injuries suffered on June 22, 1965, while doing construction work on the premises of the defendant in Granite City, Illinois.

The defendant complains of numerous errors committed during the trial. The alleged errors and the evidence adduced by the parties will be reviewed and discussed to the extent necessary to this opinion.

The plaintiff was working for a contractor, Minnette Boiler and Sheet Iron Works, engaged to perform work for the defendant, Union Starch and Refining Company, of Granite City, Illinois, under a purchase order dated April 15, 1964. The plaintiff's employer agreed to fabricate and erect two new 3,500 bushel stainless steel tanks, numbers seven and ten, in defendant's steep house.

The evidence showed that the defendant was engaged in processing corn into products consisting of dried starches, syrup, glucose, caramel, textile, and paper. The part of defendant's operation involved in this case concerns work performed in a "steep house." The evidence discloses that in the steep house were twenty water pumps, that water was used to wash down the floors and that the tanks would overflow; as a result the floor and bottom of the tanks were wet.

In 1960 the defendant commenced a program of replacing the old wooden tanks with new stainless steel tanks. The tanks were replaced two at a time and the usual work was not discontinued while the replacements were being made. The agreement provided that the plaintiff's employer was to erect two new stainless tanks, being numbers seven and ten. These tanks were made of five or six rings which were made to a radius and each ring had three sheets. The erection consisted of placing the legs of the tank on concrete bases which were below the level of the floor. The bottom of the tank was cone-shaped and the top had a steel roof. Because of the water and overflow, the contractor putting in the foundations had to sandbag the area to keep it dry. The new tanks were to have a capacity of 3,500 bushels and were about fifteen feet in diameter and forty-seven feet in circumference and were six to eight feet higher than the old tanks.

The evidence further showed that due to a hailstorm in April, 1964, the roof on the steep house was damaged and that when it rained, the roof leaked in many places and particularly over the area where tanks seven and ten were being erected. In between the tanks were steel I-beams which ran from the east wall to the west wall in the steep house which were about seven and one-half inches wide and over the I-beams was a catwalk which did not extend completely to the wall of the building.

The plaintiff, a boilermaker for twenty-two years, commenced working in the defendant's plant about the middle of May, 1965, and had been working about five weeks before June 22, 1965, the date of the incident in question. In the afternoon of June 22, 1965, the plaintiff was instructed to fit a roof on to tank number seven. The roof consisted of two pieces of steel and weighed about one thousand pounds. The pieces for the roof were picked up by a chain fall from the top of tank number eight and moved over to tank number seven. It was necessary to use the I-beam on both sides of the tank to put on the roof. The plaintiff walked out from the catwalk onto the I-beam and was using a sleever to pry the roof up to fit on the lugs so it could be welded. His foot slipped out from under him and he fell on to a chute which was on top of the old wooden tank injuring his left knee.

It is not controverted that the plaintiff saw the roof leaking and saw water on the I-beam before he went out on it and that his shoes were not dry as he walked out on the I-beam.

The defendant's first complaint of error arises out of a ruling of the court imposing upon the defendant the duty to furnish the employees of the contractor with a safe place to work.

The basic theory of the defendant in this case is that the trial court erred in accepting the plaintiff's contention that the defendant owed the plaintiff a safe place to work and that the openness of the risk of injury and the obviousness of the danger were irrelevant in determining the defendant's duty of care, by rulings on various motions and instructions.

The defendant cites Illinois cases which generally adopt the principle announced in Calvert v. Springfield Electric Light and Power Co., 231 Ill. 290, at page 293. "The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who are likely to act upon such invitation, and if there are hidden dangers upon the premises he must use ordinary care to give persons rightfully upon the premises warning thereof, and that the owner owes such duty to an independent contractor or his servants while working upon his premises." (Italics ours)

This principle is contrary to the theory of plaintiff inasmuch as the presence of the water of which he complains was as well known to him as to the defendant. It was not a hidden danger and was obvious to all. The trial court found that the conditions involving the area around the tanks and at the floor level, including the conditions of the roof, were known to plaintiff and, further, that plaintiff also knew his shoes were wet and that the I-beam was wet. In National Builders Bank of Chicago v. Schuham, 319 Ill. App. 546, the court held that the owner of property owes to an independent contractor and his servants who work thereon the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible for the injury are known to the contractor and his servants.

In Craig v. Olin Mathieson, 427 Fed.2d 962 (1970, U.S.C.C.A., 7th Cir.), the court concluded that under the law announced by the Illinois courts the owner is not liable for injuries resulting from conditions obviously dangerous and known by the contractor or his employee. In their opinion the said court cited Calvert v. Springfield Electric Light and Power Co., supra; National Builders Bank of Chicago v. Schuham, supra; Ragni v. Lincoln-Devon Bounceland, Inc. (1968), 91 Ill. App.2d 172.

The court in the Craig opinion also cited Deaton v. Board of Trustees of Elon College, 226 N.C. 433. "In that case the college employed an independent contractor to make repairs of its electrical system. The defendant was held as a matter of law not liable for the death of one of the employees who while standing on wet ground touched a live wire and was electrocuted. The independent contractor knew at the time of making the contract that some of the wires were high tension. The court concluded that the owner was not liable for injuries resulting from conditions obviously dangerous and known by the contractor. Further, the court reasoned that the contractor was an expert, exercising his specialized knowledge according to his own judgment and with his own devices, and that he was aware of the danger inherent in the condition, as well as the peril incident to handling live wires while standing on wet ground."

The defendant urges that the issue of the plaintiff's knowledge of the conditions is not relevant and cites as an exception the rule enunciated in the headnote of 57 C.J.S., Master and Servant, Sec. 603 at page 374, wherein the text reads as follows: "An employer who reserves the right to direct the manner of performing the details of the work or interferes and assumes control may become liable for an injury to the servant of the contractor."

There is testimony on the record that the defendant retained some supervision of the work, however, in view of the court's instructions, particularly plaintiff's Instruction # 3, "The owner of property owed the plaintiff the duty to exercise ordinary care to keep the property reasonably safe for use by the Plaintiff" and plaintiff's Instruction # 6, "The plaintiff claims he was injured and sustained damage while exercising ordinary care, and that the defendant was negligent in one or more of the following respects:

a) In negligently and carelessly failing to furnish plaintiff a safe place in which to work;

b) In negligently and carelessly failing to provide an appropriate place upon which plaintiff could stand to do his work;

c) In negligently and carelessly permitting the roof of the premises wherein plaintiff was working to leak, and consequently allowing rain to fall onto the I-beam upon which plaintiff was standing, causing it to be slick and hazardous;

d) In negligently and carelessly causing the plaintiff, in the course of his work, to stand above an open and dangerous area without proper guards or protection to prevent him from falling from the place on which he was standing.

The plaintiff further claims that one or more of the foregoing was the proximate cause of his injuries.

The defendant denies that he did any of the things claimed by the plaintiff, denies that he was negligent, denies that any claimed act or omission on the part of the defendant was a proximate cause of the claimed injuries, and denies that the plaintiff was in the exercise of ordinary care.

The defendant further denies that plaintiff was injured or sustained damages to the extent claimed,"

thus, this contention has no merit. The employer rule referred to in 57 C.J.S., supra, is not applicable since neither the trial judge nor the jury made any finding to the effect that ...

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