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Scully v. Otis Elevator Co.

OCTOBER 12, 1971.

VERONICA SCULLY ET AL., PLAINTIFFS-APPELLEES, APPELLANTS-CROSS-APPELLANTS,

v.

OTIS ELEVATOR COMPANY, ET AL., DEFENDANTS-APPELLANTS-CROSS-APPELLEES — (J.L. SIMMONS COMPANY, INC., COUNTER-PLAINTIFF-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. P.A. SORRENTINO, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 9, 1971.

Plaintiffs, as widow and lineal heirs of the decedent Robert Scully, instituted this action against defendants alleging violations of the Structural Work Act (Ill. Rev. Stat. 1961, ch. 48, par. 60-69.) Defendants in the cause were Otis Elevator Company, J.L. Simmons Co., Inc. and the architectural firm of Berners, Scober & Kilp. A counter-claim for indemnity was also instituted by Simmons against Otis. The jury found in favor of plaintiffs and against Otis and Simmons. Damages were assessed at $400,000 in favor of plaintiff Veronica Scully and $150,000 in favor of each of the minor plaintiffs. The jury also found in favor of Berners, Schober & Kilp and against plaintiffs. On the counter-claim the jury found in favor of counter-defendant Otis and against counter-plaintiff Simmons.

Plaintiffs and defendants, Otis and Simmons, all filed post-trial motions requesting judgments notwithstanding the verdicts or in the alternative, new trials. In its post-trial motion, Otis also requested a remittitur as alternative relief. The trial court denied all the post-trial motions contingent upon the two minor plaintiffs, by their mother and next friend, filing written consents in reduction of judgment. The consents to remittitur were filed and the court entered judgments in favor of plaintiff Veronica Scully in the amount of $400,000; in favor of the minor plaintiff John Scully in the amount of $95,000; and in favor of the minor plaintiff Kathleen Scully in the amount of $105,000. Otis appeals from the judgments entered against it and in favor of the plaintiffs. Simmons appeals from the judgments entered against it and in favor of the plaintiffs and counter-defendant Otis. Plaintiffs cross-appeal from the entry of the remittitur.

The evidence reveals that defendant, Berners, Schober & Kilp, was hired to design an addition to St. Joseph's Hospital in Joliet, Illinois. It was to prepare preliminary plans and prime contract and generally administer construction. Eleven prime contracts were awarded in the construction of the addition. No sub-contracts were involved. Two of these contracts were awarded to defendants Simmons and Otis. Simmons contracted with the hospital to handle all of the general work including excavation, masonry, concrete and finishing. Simmons was also directed by the architects to prepare a critical path schedule of the work in order to coordinate the efforts of the other contractors. Otis contracted to install eight elevators and dumbwaiters. The Simmons and Otis contracts provided that Simmons was to prepare the shafts for the installation of the elevators.

On July 25, 1962, Robert Stein, an architect, told James Dempsey, Otis' foreman, that he wanted Otis to work on elevator shafts six and seven, since the bricklayers and terrazzo men were being delayed in their work schedules in that area. However, Dempsey informed Stein that Otis could not work on those shafts because Simmons had constructed a bricklayers' scaffold over shaft seven at the eighth floor. Later the same day, Vern Castell, Simmons' Construction Superintendent, informed Dempsey that he would make arrangements with his bricklayer foreman, James Delaney, to prepare for Otis' work.

The next morning at 8:30 A.M. Dempsey told Delaney that openings would have to be cut in the scaffold over shaft seven to enable Otis to proceed with the installation of the elevators. The openings were necessary so that plumb lines could be dropped into the shaft to accurately align the elevator guide rails. Dempsey also told Delaney that there would be men working beneath the scaffold in the shaft cleaning out the pit which extended seven feet below basement level. The pit had been designed to accommodate equipment capable of stopping an elevator's descent. Delany at first objected to the opening of the holes for safety reasons, but eventually consented. Dempsey told Simmons' carpenters the size and location of the required openings. After the openings were cut some of Simmons' bricklayers placed pallets of bricks on the scaffold to facilitate their work in the area. They also took the metal retaining bands off the pallets. Dempsey went to the tenth floor and dropped four plumb lines in shaft six *fn1 and four plumb lines in shaft seven. The plumb lines extended from the tenth floor, through the openings in the scaffold, to the basement.

Dempsey intended to anchor the plumb lines in the basement. However, when he went to the basement, he discovered that Simmons' laborers were cleaning out the elevator pit. When Dempsey discovered Simmons' workers in the pit, he warned them that bricklayers were working above them on the scaffold. Since Dempsey was unable to proceed with the measurements until the pit was cleaned, he returned to shaft one where he had been working previously.

Later in the day Dempsey returned to the pit in shaft seven and learned that the Simmons' workers were unable to dry the pit due to a drainage problem. Castell asked Scully, plaintiffs' decedent and a plumber, to help with the problem. Scully obtained a test plug and handed it down to one of the men in the pit. As he leaned over to look into the pit, he was struck on the head and fatally injured by a brick which fell from the scaffold. The only bricklayers working in the shaft were on the eighth floor scaffold. On the eighth floor Delaney had seen two or three bricks fall through one of the openings in the scaffold. The bricks fell because of the vibration caused by the hydraulic buggy that Simmons' workers were using to carry the brick pallets. Shortly before the accident, Melville Anderson, Simmons' masonry foreman and Delaney's superior, had seen the openings in the scaffold and told someone to cover them. The openings were again ordered to be covered by Delaney just before the accident.

Otis contends that there was no proof that it had "charge" of the work within the meaning of section 9 of the Structural Work Act, hence it is entitled to a judgment notwithstanding the verdict. Alternatively Otis contends that it is entitled to a new trial, since the verdict finding it liable under the Act was against the manifest weight of the evidence.

• 1-3 Section 9 of the Structural Work Act renders liable, "any * * * contractor * * * having charge of the erection, construction, repairing, [or] alteration * * * of any building * * * within the provisions of this act," who wilfully violate its provisions.

In Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, the court was confronted with the issue of whether there was a need to instruct jurors with the definition of the statutory words "having charge of." The court stated at page 323:

"We do not believe such a need exists. It is well established that the meaning of words, used in their conventional sense, need not be defined or explained in giving instructions to the jury. [cited authority.] The term "having charge of" is one of common usage and understanding, and it is our opinion that further attempt at definition can only lead to confusion and error."

From the evidence the jury could have reasonably concluded that Otis was in charge of that segment of the work in the area of shafts six and seven involving the installation of elevators which resulted in Scully's death. Otis was bound by its contract with the owners of the hospital to install the elevators. To facilitate the work of the other contractors Otis began work in shafts six and seven. Otis' foreman Dempsey directed the Simmons employees in the area to clean out the elevator pit. He also directed them to cut openings in the scaffold which rendered it unsafe. Dempsey testified that he was in charge of the work to the extent of preparing the Simmons scaffold for the elevator installation. Moreover, it appears that Dempsey was in charge of the complete operations of the elevator installation. The mere fact that Simmons was also present in the same work area fulfilling its contractual obligations does not absolve Otis of liability. It is now well settled that more than one person can be in "charge." Gannon v. Chicago, Milwaukee, St. Paul and Pacific Ry. Co. (1961), 22 Ill.2d 305.

• 4 Otis also suggests that since Simmons could have properly refused to cut the openings in the scaffold, Otis was not truly in "charge." We do not find this argument meritorious. While Simmons was also in "charge" of work in the area and violated its duty to render safe the scaffold, the direction to alter the scaffold was supplied by Otis. This direction touched Otis' area of work and Otis must necessarily be deemed to have been in "charge" irrespective of the alternative courses of action open to Simmons.

• 5, 6 Therefore, the trial judge correctly denied Otis' motion for judgment n.o.v. The evidence when viewed in its aspect most favorable to plaintiffs did not so overwhelmingly favor Otis that no contrary verdict could stand. (Pedrick v. Peoria and Eastern RR. Co., 37 Ill.2d 494.) Moreover, the verdict of the jury was not clearly and palpably erroneous or against the manifest weight of the evidence so as to warrant a new trial. Russell v. Rowe, 82 Ill. App.2d 445.

Otis next contends that the trial court erred in instructing the jury as to the provisions of the Structural Work Act. Specifically, Otis cites Plaintiffs' Instructions 15A, 17 c and 18 which substituted "work" and "work in question" for the statutory language of having charge of the "erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act." Otis also contends that the peremptory burden of proof instruction (Plaintiffs' Instruction 17c) was further misleading because it did not tell the jury that plaintiffs were required to show that Otis was in charge at the time of the accident.

• 7, 8 Instructions are to be considered as a series. (Miller v. DeWitt, 59 Ill. App.2d 38.) When so considered in the present case we find no error. Plaintiffs' Instruction 13A paraphrased the provisions of the Structural Work Act and in particular utilized the exact language omitted in the instructions complained of.

Otis maintains that the "redeeming" effect of Plaintiffs' Instruction 13A was obliterated by final argument of plaintiffs' counsel wherein he stated that the substance of the Structural Work Act was contained in the burden of proof instructions. However, since the jury was instructed to consider the instructions as a whole, we find no prejudice accruing to Otis.

• 9 We similarly find Otis' contentions with regard to Plaintiffs' Instruction 17c without merit. Otis maintains that the court erred in failing to instruct the jury that plaintiffs had to prove each defendant had charge at the time of the accident. Otis deems the time factor critical to the issues of the case and cites Campione v. Henry C. Lytton & Co., 57 Ill. App.2d 147, 158. However, in Campione the defendant had left the premises and could no longer have been in charge. In the present case Otis was still on the job site and had not finished its work in shafts six and seven. Otis' plumb lines were still suspended in the shafts. Otis' foreman was at the scene of the accident inspecting the elevator pit. Therefore, no issue as to time existed. Otis was either in charge at all times herein pertinent or never in charge.

Otis next contends that the trial court erred in refusing to submit Otis' special interrogatory which read:

"Do you find from the evidence that Otis Elevator Company was in charge of the erection or construction at the time and ...


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