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Jackson v. Frierdich & Sons

AUGUST 12, 1971.

PAUL JACKSON, PLAINTIFF-APPELLEE,

v.

H.J. FRIERDICH & SONS, INC., ET AL. — (H.J. FRIERDICH & SONS, INC., DEFENDANT AND THIRD PARTY PLAINTIFF-APPELLANT,

v.

WILLIAM BAKER BUILDING CLEANING COMPANY, THIRD PARTY DEFENDANT-APPELLEE.)



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

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 9, 1971.

This action was brought by the plaintiff, Paul Jackson, to recover damages occasioned by the alleged violation of the Structural Work Act (Ill. Rev. Stat. 1965, ch. 48, par. 69), by the defendants, H.J. Frierdich & Sons, Inc. and John Brancaglione, Jr. In turn, defendant Frierdich brought a third-party action against the third-party defendant, William Baker Building Cleaning Company, hereafter referred to as Baker. At the close of the evidence in the case, the court directed a verdict in favor of the third-party defendant, Baker. The jury returned a verdict for plaintiff against the defendant Frierdich and in favor of the defendant Brancaglione.

Judgments were entered on the verdict of the jury and on the court's directed verdict from which judgments this appeal is brought.

The facts which brought this to litigation are as follows: The Immaculate Conception Church in Columbia, Illinois, entered into a contract with third-party defendant, Baker, as the general contractor to renovate the church building. The renovation involved removal of old brick and stucco from the church walls and putting on new brick and the installation of a new roof among other general work.

The third-party defendant contracted with defendant John Brancaglione, Jr., d/b/a Brancaglione Building Contractor, hereinafter called Brancaglione, to perform the brick work. This work was to be performed on a cost plus a fee basis. Third-party defendant contracted with defendant H.J. Frierdich & Sons, Inc., hereinafter called Frierdich, to do the carpenter work on a time and material basis.

The plaintiff, Paul Jackson, hereinafter called the plaintiff, was the foreman for the third-party defendant.

On July 30, 1963, the plaintiff fell from a scaffold on the east side of the church. At the time of the fall, bricklayers were working from a scaffold on the south side of the church. Just prior to the plaintiff's fall, the plaintiff was upon the scaffold with the bricklayers because of some matter having to do with their work.

The scaffold, from which the plaintiff fell, was a tubular type, two sections or 10 feet high. There was no one else on this scaffold and there were no witnesses to the fall.

The plaintiff testified that he stepped from the roof of the church onto a scaffold board on the top section of the tubular scaffolding. When he did so, the board slipped and he fell to the ground suffering injury.

The testimony shows that the scaffold from which the plaintiff fell was erected and used by several groups of persons. Laborers employed by third-party defendant erected a single five-foot high section of the scaffold from which the bricklayers worked. After the bricklayers had completed their work, laborers started to remove this scaffolding and had removed the boards when request was made by the carpenters to leave the tubular sections. The custom of the industry is that crafts allow other crafts to use their scaffolding when so requested in order that the effort of erecting and removing scaffolding not be duplicated. And further, the custom was that the craft requesting the tubular scaffolding would furnish their own boards.

Brancaglione and third-party defendant, Baker, both had scaffolding on the job site. The scaffolding was intermingled but each had different colors to allow for identification of ownership.

The work that the carpenters performed on the east wall required the use of a second section of scaffolding and there was testimony that the carpenters erected the second section. There was further testimony that the carpenters used the scaffold both prior and subsequent to the date plaintiff fell. The evidence showed that neither the plaintiff or third party defendant had anything to do with the erection of the scaffold.

There is no testimony as to the ownership of the scaffold board which slipped or who in fact placed the board itself on the scaffold. There is no testimony as to the condition of that board or how long it had been up prior to the fall, but plaintiff testified the ...


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