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Tenenbaum v. City of Chicago

MAY 9, 1973.

JULIUS TENENBAUM, PLAINTIFF-APPELLEE,

v.

THE CITY OF CHICAGO, DEFENDANT-APPELLANT AND COUNTERPLAINTIFF-APPELLEE — (O'NEIL CONSTRUCTION COMPANY, DEFENDANT-APPELLANT AND COUNTERDEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. HENRY W. DIERINGER, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT: Julius Tenenbaum (plaintiff) brought action for personal injuries against the City of Chicago (City) and O'Neil Construction Company (O'Neil). At the time of the occurrence, plaintiff had been employed by Link Belt Company (Link Belt). The City filed a third-party action against Link Belt and also a counterclaim against O'Neil seeking indemnity from both. Link Belt assumed defense of the City and the third-party action against it was dismissed.

After a jury trial, a verdict was returned against the City and O'Neil in the amount of $150,000. The court directed a verdict in favor of the City on its counterclaim against O'Neil and entered judgment against O'Neil for the full amount of the recovery. The City and O'Neil both appeal.

Plaintiff's original complaint against the City and O'Neil, filed August 5, 1964, contained one count and sought recovery on the theory of negligence. On January 15, 1970, with leave of court, plaintiff filed an amended complaint of two counts against both defendants. One count alleged violations of the Structural Work Act of Illinois. (Ill. Rev. Stat. 1971, ch. 48, par. 60-69). The other alleged violations of a City ordinance which incorporated the terms of the statute. City Code of Chicago, ch. 75, sec. 1, etc.

The points raised here by O'Neil fall into two categories. O'Neil urges that the judgment be reversed because the Structural Work Act does not apply as a matter of law; there was no proof that O'Neil violated this Act and there was no evidence that O'Neil had charge of the work as required by the statute. The second category of contentions urges reversal of the judgment and remandment of the cause for a new trial because of trial errors: in the instructions to the jury combined with permitting plaintiff's counsel to read a City ordinance to the jury; refusal of the trial court to permit proper attempt at impeachment of plaintiff by O'Neil and prejudicial final argument by plaintiff's counsel. O'Neil also urges that the judgment in favor of the City on its counterclaim for indemnity should be reversed as a matter of law.

In its separate brief, counsel for the City urge reversal of the judgment as a matter of law because the Structural Work Act does not apply. The City also joins O'Neil in urging that the trial court erred in permitting commingling of the Structural Work Act of Illinois with ordinances of the City and provisions of the contract between the parties and in permitting plaintiff's counsel to read ordinances to the jury. The City also urges, contrary to the position taken by O'Neil, that the court properly entered judgment in favor of the City and against O'Neil for indemnity based upon the contract between them.

Plaintiff maintains that the Structural Work Act is applicable here; the defense of contributory negligence is not applicable to alleged violations of the City ordinance by O'Neil; the jury properly found that O'Neil was in charge of the work and that O'Neil wilfully violated the Structural Work Act. As regards trial errors, plaintiff responds that the court did not err in permitting cross-examination of a witness for O'Neil concerning health and safety rules of the State of Illinois; if such error did exist, it was waived by failure of O'Neil to object; it was not error to permit plaintiff's counsel to read provisions of the City ordinance and also of a manual of Accident Prevention which were incorporated in the construction contract; there was no error with respect to attempted impeachment; no error in the instructions or closing argument; and, finally, no error which in any way affected the outcome of the trial.

The evidence here shows the following material facts. The City contracted with O'Neil to erect an underground water treatment plant as an addition to existing facilities. The work consisted primarily of a concrete structure. O'Neil was one of several general contractors which entered into written agreements with the City. O'Neil also engaged a number of subcontractors. Plaintiff was employed as a labor foreman by Link Belt which was also a general contractor. O'Neil was the first contractor to commence work on the concrete structure. Link Belt was to install certain chemical mixing and scraping equipment which required performance of some concrete work in erecting bases for this purpose.

Plaintiff was injured at a portion of the work referred to as Basin No. 4. This basin consisted of three levels. The roof was at ground level and contained a penthouse resting thereon. Seventeen feet below the ground level was an intermediate floor. Seventeen to 18 feet below this intermediate level was the concrete floor of the basement. Included in the structure was a so-called baffle area designed to check or regulate the flow of water. Above this area there were openings in the concrete floors at each of the levels. On the intermediate level, there was an opening slightly more than nine feet in width. This opening extended through all floors and had been used for hoisting equipment and materials between the lower and upper levels.

On June 8, 1964, plaintiff sent two of his men, also employed by Link Belt, into the area to remove debris and wood which may have been left on the intermediate floor. This area was then checked by the City and plaintiff was told that further work was necessary there. Plaintiff entered the area himself to determine if his personnel had properly performed the work. Part of the area to the west consisted of a so-called maze through which the water would flow when the finished work was in operation. Plaintiff walked on the intermediate floor in an easterly direction through a portion of this maze. As he progressed and went around one wall, he found that there was no light. He testified that he tried to turn on temporary light bulbs which did not operate. He thereupon continued, with the use of a flashlight.

As he came toward the baffle chamber on the intermediate level, something hit his arm. As he had progressed toward this point, there had been various types of wood and other material against the wall. He dropped his flashlight and it went out. He started searching on the floor feeling with his hands for the light. As plaintiff searched in the dark, he tripped. As he stumbled, he felt the edge of a ladder with rungs. He testified that in trying to regain his balance, the ladder shifted with him and he could feel the rungs as it slid along a little bit with him. He then fell into space. Plaintiff had fallen through the aperture and to the concrete floor of the basement some 17 or 18 feet below. The nature and severity of plaintiff's injuries are not disputed.

There are various conflicts in the evidence. There is evidence that the hole through which plaintiff fell had been used for hoisting of materials and equipment in connection with the work. There is evidence that, at the time of the occurrence, this hole had been closed at the ground level, which constituted the roof of the project. Also, it appears that this portion of the hole had remained open during the preceding week and was closed shortly before the mishap occurred. There was no barricade in front of the hole at the time of the occurrence. There is also testimony that O'Neil had completed its work in this area prior to this occurrence; although there is evidence that O'Neil had been working on the top level of the structure at the east end, above where the accident occurred, and also at the west end. The evidence shows that O'Neil, as well as Link Belt, had used the hole in question for hoisting purposes. O'Neil produced evidence that it had removed its equipment from the intermediate area and had poured a concrete roof at grade level (the roof) over the entire baffle area some three months before the occurrence.

As regards the lighting on the day in question, the area contained no provision for permanent lighting as it was designed to be under water when the facility was completed. O'Neil had established temporary lighting in the area but there is evidence that it had removed this equipment prior to the occurrence. Link Belt had, however, provided temporary lighting by means of an electric cord and bulbs. Plaintiff testified that the area was dark and that these electric bulbs did not operate.

As regards the ladder, there is evidence that a stepladder had been used at the job to permit access between the intermediate floor and the basement level. Link Belt personnel, as well as O'Neil employees, had used the ladder at the time of the accident and prior thereto. O'Neil offered proof that it had no ladders in the area at the time and that none of its personnel were actually using the area when the mishap occurred. However, there is testimony that the ladder used for access between the basement level and the intermediate area above was some 17 or 18 or even 20 feet long. There is also evidence that Link Belt used only shorter ladders about six to eight feet in length in its work in the area and there is conflicting evidence that there had been a ladder belonging to Link Belt between the levels.

• 1 The first issue, raised by O'Neil and the City, is applicability of the Structural Work Act. This revolves primarily about the language of the statute which applies to "All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances * * * for the use in the erection * * * of any * * * structure * * *" and which requires them to be "* * * so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same * * *." (Ill. Rev. Stat. 1971, ch. 48, par. 60.) This court is strongly committed "* * * to provide a liberal construction of the Structural Work Act to attain the purpose of providing workmen in extrahazardous operations with a safe place to work * * *." (Navlyt v. Kalinich, 125 Ill. App.2d 290, 293, 260 N.E.2d 855, aff'd 53 Ill.2d 137, 290 N.E.2d 219.) The requirement of a liberal construction of this salutary and remedial legislation has been the law of Illinois from the early decision in Schultz v. Henry Ericsson Co., 264 Ill. 156, 106 N.E. 236, to the present day.

• 2 In the case at bar, the opening through which plaintiff fell had been used during construction for hoisting equipment and materials from one level to another. It has been held that a portion of the permanent edifice being created by the construction, which is used as a stay or support for the work, is within the purview of the Act. In Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724, the court held that a complaint which alleged that plaintiff fell from the place on the permanent structure where he was working stated a cause of action. In effect, plaintiff's evidence in this case shows that he was using the concrete floor of the intermediate level, which had been previously used as a basis for hoisting activities, as a platform upon which he was performing his duties within the purview of his employment. (See Spiezio v. Commonwealth Edison Co., 91 Ill. App.2d 392, 407, 235 N.E.2d 323.) Under this analysis, we find no problem in concluding that the concrete floor from which plaintiff fell was a scaffold or support within the requirements of the Act.

• 3 Plaintiff testified that he tripped upon a ladder and fell. There is evidence from which the trier of fact could have found that this ladder had been provided and used as a method of climbing up to and down from the intermediate level from which plaintiff fell. The only alternative method of going up or down between the intermediate level and the basement floor, a vertical distance of 17 or 18 feet, was a stairway which was more than 350 feet away from where plaintiff fell. In view of this testimony, plaintiff was protected by the Structural Work Act and this ladder should have been placed and operated so as to give proper and adequate protection to the life and limb of any person passing under or by it.

This conclusion is amply supported by the authorities. In Karris v. Goldman, 118 Ill. App.2d 85, 254 N.E.2d 605, plaintiff was working upon a plank scaffold as a bricklayer's helper. A mortar plate was placed upon the scaffold. In lifting mortar, plaintiff stepped upon the plate. It tipped and caused him to fall. A verdict and judgment for plaintiff were affirmed by this court upon the theory that (118 Ill. App.2d 85 at 90):

"It was a proper jury question to resolve whether the makeup of the platform and its dimension were sufficient and safe enough to accommodate plaintiff and the requisite equipment, and to provide sufficient space upon which plaintiff was to perform his task of shoveling. The jury could find, for instance, that the use of the motar plate, which was 3 ft. square and weighed between 20 and 30 pounds with a portion thereof overhanging the outermost part of the scaffold, caused the scaffold to become insufficient, unsafe and dangerous."

The case at bar is even stronger than Karris. There, the presence of the mortar plate upon the scaffold was held to cause it "to become insufficient, unsafe and dangerous." In the case at bar, not only could the jury find that the ladder accomplished the same result and made the floor (actually used as a scaffold) unsafe and dangerous but also the ladder in and of itself is a protected instrumentality directly within the purview of the Act.

The court in Karris cited and relied upon Schultz v. Ericsson, 264 Ill. 156, 106 N.E. 236. There, a runway used for wheelbarrows was cluttered with piles of bricks. Plaintiff was injured when his wheelbarrow became entangled with one proceeding in the opposite direction. The Supreme Court affirmed a judgment for plaintiff upon the theory that the presence of the bricks made the scaffold "* * * insufficient, unsafe and dangerous" 264 Ill. 156, at 165).

• 4 Quite analogously, in the case at bar, it was the duty of the trier of fact to decide whether, under all of the circumstances here, the very presence and placement of the ladder created an unsafe and dangerous condition in violation of the Act. It is difficult to determine from the record if the ladder was lying upon the concrete floor or was in place between the intermediate level and the subbasement, protruding above the floor of the former. The darkness may have prevented plaintiff from knowing this. In any event, the situation was properly submitted to the jury for their determination.

We have examined all of the many authorities cited by O'Neil and by the City. Perhaps the closest case on the facts is McGinnis v. Cosmopolitan National Bank & Trust Co., 114 Ill. App.2d 113, 252 N.E.2d 56. We find that case inapplicable here. Plaintiff was employed by a tenant in a building which was being remodeled. She heard her name called and the sound seemed to emanate from a hole made in the floor for construction purposes. She walked over to the opening, leaned over and fell through to the basement. This court held that she was not within the purview of the Structural Work Act. The court properly pointed out that the dumbwaiter or hoist which was to be installed in the aperture did not yet exist. (See 114 Ill. App.2d 113, at 116.) Furthermore, the plaintiff there was not engaged in construction work but was employed by a tenant in an entirely different occupation not within the purview of the Act.

The City cites at length and relies upon Thon v. Johnson, 30 Ill. App.2d 317, 174 N.E.2d 400. There, some workmen built a form for the purpose of installing a concrete slab in a garage floor. Plaintiff, an electrician, attempted to use this form to enable him to reach a switchbox. The form collapsed and he was injured. This court held that plaintiff's injuries were not compensable under the Structural Work Act. This cited case has been differentiated on the ground "* * * that something which is not intended for use as a scaffold does not become a scaffold merely because of the intention of the party so using it." (See Crafton v. Lester B. Knight & Associates, 114 Ill. App.2d 52, at 56, 252 N.E.2d 383.) See also Karris v. Goldman, 118 Ill. App.2d 85, at 88, 254 N.E.2d 605.

We note also that Thon was cited by the dissent in Louis v. Barenfanger, 39 Ill.2d 445, at 456, 236 N.E.2d 724, but only as support of the proposition that the appellate courts "* * * have been uniform in their interpretation of the Structural Work Act to exclude permanent and integral parts of the structure." Since Louis was decided by the Supreme Court in 1968, the court has not, to our knowledge, relinquished or modified the position taken by the majority opinion.

• 5 The remaining authorities cited by O'Neil and the City are those usually cited and relied upon in proceedings of this character. An additional analysis of each is not required. Upon consideration of the entire record, we have concluded that there was sufficient evidence to bring plaintiff within the operation of the applicable statute. O'Neil contends that the "real cause of the mishap was the dropping of the flashlight by plaintiff or the failure of the temporary lighting to work." Certainly, however, the presence of the ladder was a contributing and effective cause of plaintiff's injuries. Whether or not the presence of this instrumentality made the concrete floor, upon which plaintiff was performing his duty, unsafe or dangerous was an issue of fact for determination by the jury. (Walden v. Schillmoeller & Krofl Co., 111 Ill. App.2d 95, 99-100, 248 N.E.2d 547.) It was proper for the trial court to deny the motion of defendants for directed verdict at the close of plaintiff's case and to submit the cause to the jury.

• 6 In addition to the above cogent reasons, there is another quite independent but equally potent theory which brings this case within the purview of the Structural Work Act. Count 2 of plaintiff's complaint as amended alleged failure of those in charge of the work to supply safe barricades for the opening through which plaintiff fell. The Act requires that where "* * * elevating machines or hoisting apparatus are used within a building in the course of construction for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be enclosed or fenced in on all sides by substantial barrier or railing at least eight feet in height." (Ill. Rev. Stat. 1971, ch. 48, par. 66.) The evidence here shows that the aperture through which plaintiff fell was not fenced or barricaded at the time. There is also evidence that at one time the hole had been protected by some type of barricade which was then removed. The evidence is conflicting as to precisely when the hoisting of materials through the hole was completed. The evidence is, however, clear that the hoisting process had been discontinued prior to the day of the mishap. Section 66 of the statute, which must, of course, be liberally construed in plaintiff's favor, requires the barricades "[i]f elevating machines or hoisting apparatus are used * * *." The statute does not say that barricades are required only when hoisting apparatus is actually in use. The law does not use the present progressive tense are "being used" so as to require the barriers only while hoisting was in progress. The statute fails to specify precisely when the person in charge of the work should remove the barriers. Under these circumstances, questions of fact existed as to whether or not the removal of the barricades and their absence when plaintiff fell constituted a violation of the Act. See Claffy v. Chicago Dock & Canal Co., 249 Ill. 210, 94 N.E. 551.

• 7 Furthermore, even if O'Neil had actually suspended or completed its hoisting activities as well as its other work in the particular area in question some days before the occurrence, this fact alone would not necessarily enable it to avoid its liability under the Structural Work Act. Those in charge of the work may not evade their legal liability in a situation of this type by mere inaction. (See Pantaleo v. Gamm, 106 Ill. App.2d 116, 125-126, 245 N.E.2d 618.) The presence of these conflicting factual issues made submission of the cause to the jury by the trial court not only proper but imperative.

• 8 O'Neil next urges that there is no proof of a wilful violation of the Act. As stated in O'Neil's brief, plaintiff alleged that O'Neil violated the Act by improperly placing the ladder; failing to provide adequate lighting and failure to provide a barricade over the opening used for hoisting materials. The issue was whether these violations were wilful within the purview of the statute. (Ill. Rev. Stat. 1971, ch. 48, par. 69.) Our courts have consistently held that the word "wilfully," as used in this context, is quite different from the familiar phrase "wilful and wanton." Actually, "wilful" is more synonymous with "knowing." The essence of the Structural Work Act is not limited to the concept of knowing or intentional misconduct or even to reckless disregard. Liability is imposed where the existence of dangerous conditions could have been discovered by reasonable care. Jones v. S.S. and E. Corp., 112 Ill. App.2d 79, 94-95, 250 N.E.2d 829, and cases therein cited.

• 9 Whether or not the unsafe and dangerous condition which caused plaintiff's injuries should have been discovered by defendants by the exercise of reasonable care was a question of fact for the jury. The trial court did not err in submitting this issue to the jury.

• 10 O'Neil next urges that there was no evidence that it had charge of the work within the technical meaning of the language of the Act. In the frequently cited case of Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247, the Supreme Court pointed out that the statutory words "having charge of" are words of common usage and understanding which need not be defined or explained to the jury other than by use of the words themselves. The court held that these words do not limit duty and liability to persons who have control or supervision of the work; and, further, that exercise of supervision and control, or retention of these rights, are not in themselves essential elements of being in charge.

• 11 In the case at bar, the contract between O'Neil and the City provided for erection of the basic structure. All other prime or general contractors were concerned primarily with the installation of equipment and machinery and facilities for the use thereof within the structure. There was a long and complicated contract between the City and O'Neil setting forth the rights of the parties with reference to performance of the work by O'Neil. It has been correctly pointed out by this court that "* * * the duties of a general contractor to the owner can be determinative of the issue of who was in charge of the jobsite." (O'Leary v. Siegel, 120 Ill. App.2d 12, 19, 256 N.E.2d 127.) The contract provided that all of O'Neil's subcontractors and their employees were to be considered employees of O'Neil. O'Neil was to determine methods and procedures in connection with the work. The contract specifically provided that the work was to "* * * be under the charge and care of * * *" O'Neil until acceptance by the City. The evidence is clear and undisputed that such acceptance had not yet occurred when plaintiff was injured. It was the duty of O'Neil, under the contract, to keep the jobsite free from material and debris and to remove items which would constitute a safety hazard. All equipment was to be removed by O'Neil upon completion of the work.

Furthermore, O'Neil had more employees on the project than any other contractor. It was the prime contractor for erection of the basic structure. Actually an O'Neil engineer testified that O'Neil was "in charge" of the area in question (Basin No. 4) when plaintiff was injured. There is evidence that O'Neil had not fully completed its work in the area at that time. In addition, as pointed out by counsel for the City, if the jury believed plaintiff's testimony, it could reasonably conclude that O'Neil created an unsafe condition by leaving the ladder in or near the unbarricaded hole.

• 12 In view of all of these circumstances, the determination as to whether O'Neil was in charge of the work was an issue of fact for resolution by the jury. (Kobus v. Formfit Co., 35 Ill.2d 533, 537-538, 221 N.E.2d 633; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 323, 175 N.E.2d 785.) Whether or not a person is in charge of the work has been well described as "the ultimate factual question" in cases arising under the Structural Work Act. (See Jones v. S.S. & E. Corp., 112 Ill. App.2d 79, at 92-93, 250 N.E.2d 829, with particular reference to the citation from Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247.) It was proper for the trial court to submit to the jury the issue as to whether O'Neil was or was not in charge of the work. The determination by the jury that O'Neil was in charge of the work was not contrary to the manifest weight of the evidence.

We turn next to consideration of the alleged trial errors urged by O'Neil and the City. O'Neil urges the existence of reversible error because of refusal of the trial court to permit attempted impeachment of plaintiff by use of his prior inconsistent statements. Plaintiff testified on direct examination that he did not have a clear memory of the occurrence when his deposition for discovery was taken in 1965. He also testified that in 1970, several weeks before trial, his recollection was refreshed by an examination of hospital records. He further testified that he tripped, tried to regain his balance and felt the edge of the ladder with rungs. The ladder slid along a little bit with him. He then stated, "And I remember falling into space and that is all I remember." On cross-examination, he stated that he tripped over a ladder and, as he tried to regain his balance, the ladder shifted with him. He felt the rungs and side rail of the ladder.

It appears from the discovery deposition of plaintiff, as read to the trial court out of the presence of the jury, that plaintiff testified then that he bent over and scraped his feet along, feeling for the light. He kept walking and feeling and he fell. He also added, "That is all I remember." On the deposition, he further stated that he walked three or four steps after he dropped his flashlight and before he fell. He then testified directly that during those three or four steps, he did not feel any sort of an obstruction in front of him. The trial court sustained the objection to attempted impeachment by use of this deposition.

It further appeared that plaintiff had refreshed his recollection from a statement in his history taken at the hospital. This was to the effect that plaintiff "* * * fell down from sladder [sic] losing consciousness for a few hours * * *." When the trial court refused cross-examination of plaintiff upon the deposition, counsel for O'Neil requested that he be permitted to cross-examine from the hospital history and made an offer of proof thereof. The trial court refused the right to cross-examine on the history and refused the offer of its admission in evidence.

• 13, 14 As we have already shown, the presence of this ladder was a central and most important aspect of plaintiff's case. It requires no citation of authority to establish that any litigant should have the right to test the credibility of an opposing occurrence witness by use of his prior inconsistent statements relative to material matters. (See Sommese v. Maling Bros., Inc., 36 Ill.2d 263, at 268-269, 222 N.E.2d 468. See also Dembinski v. F. & T. Corp., 124 Ill. App.2d 112, at 117-119, 260 N.E.2d 359.) It is our considered opinion that this ruling by the trial court was erroneous and that it effectively denied O'Neil a fair opportunity of attempting to impeach plaintiff, the sole occurrence witness, by his previous inconsistent statements. Fairly read, the testimony given by plaintiff on his deposition was directly contradictory to the testimony on trial. This situation cannot be changed by the fact that plaintiff testified on direct examination that his recollection had been refreshed by the hospital record. This information regarding plaintiff's prior testimony was indispensable to the jury in performing their duty of evaluating plaintiff's credibility as regards his testimony upon a most crucial fact.

• 15, 16 As regards the hospital history, the authorities establish that plaintiff had the right to examine the memorandum to refresh his recollection and then to testify from his independent recollection as thus refreshed. (Adamaitis v. Hesser, 56 Ill. App.2d 349, 354-355, 206 N.E.2d 311.) Plaintiff having done so, it follows necessarily that O'Neil had the right to inspect the memorandum and to cross-examine regarding its use by plaintiff in the recollection process. "This is clearly the settled law in this state." (Justice v. Pennsylvania R.R. Co., 41 Ill. App.2d 352, 355, 191 N.E.2d 72.) The jury was entitled to know and to evaluate the source of the revival of plaintiff's recollection. On the other hand, the hospital record itself was not competent evidence. There was no proper foundation laid as to the circumstances of preparation of the record nor was the person who had made this record produced in court. See Healy v. City of Chicago, 109 Ill. App.2d 6, at 12-13, 248 N.E.2d 679.

It follows that the ruling of the trial court rejecting the offer of the hospital record in evidence was correct. The rulings of the trial court refusing cross-examination on the deposition and on the source of plaintiff's refreshed recollection were erroneous.

O'Neil and the City both direct our attention next to the instructions. The case was tried before the second edition of IPI was available. Plaintiff's Instruction No. 4 will be considered first. This instruction delineated the issues in the case for the jury. O'Neil objects to this instruction on the ground that it omitted use of the word "wilful" in describing violations of the Act. This criticism is not well taken.

• 17 The court also gave the jury Plaintiff's Instruction No. 5 which carefully defined "wilful" in accordance with established authority as above discussed without use of that word. This procedure is approved by IPI 2d in which pattern Instruction 180.04 is a model for the issues instruction and 180.14 is a model for enlightenment of the jury on the definition of violation of the Act. In both cases, the instructions given by the trial court, Plaintiff's Instructions Nos. 4 and 5, parallel with extreme accuracy the requirements now expressed in IPI 2d. The introduction to these instructions explains the need for elimination of the word "wilful." See IPI 2d at page 466 and the comment to pattern Instruction 180.01 at pages 467 and 468. In our opinion, these instructions as given were completely proper and in accordance with law.

• 18, 19 O'Neil also takes exception to Court's Instruction No. 1, relating to the burden of proof and also to Plaintiff's Instruction No. 9, which gave the jury the provisions of the Structural Work Act. We find that Court's Instruction No. 1 on the burden of proof closely parallels IPI 2d Instruction 180.09 as modified to fit the circumstances in the case at bar. Plaintiff's Instruction No. 9 is very close to the new IPI 2d Instruction 180.01 except for the fact that the instruction as given by the court followed more closely the language of the statute. This instruction is also criticized by O'Neil on the ground that it failed to use the term "wilful violation." We find no error in the giving of these instructions and use of the same by the trial court is approved.

• 20 We do find reversible error in connection with Plaintiff's Instruction No. 3. This matter requires a background statement. It will be remembered that this cause had its origin and existed for almost six years as a negligence action. The original complaint contained various charges of negligence by defendants. An allegation was included that defendants had negligently failed to comply with an ordinance of the City referred to as ch. 75, sec. 1 of the City of Chicago Code. This ordinance required all persons in control or supervision of any building in the course of erection to comply with the Structural Work Act of Illinois. The original complaint also charged that defendants negligently failed to comply with ch. 76, sec. 4 of the City Code requiring openings in floors to be properly protected and the erection of barricades in openings on intermediate floors. We note, parenthetically, that this original complaint alleged that plaintiff was "* * * engaged in the proper performance of his duties" but contained no allegation that plaintiff was in the exercise of due care for his own safety.

After the case had been assigned for trial, on January 15, 1970, with leave of court, plaintiff filed an amended complaint consisting of two additional counts. Count 2 alleged wilful violation of the Structural Work Act in three particulars. Count 3 alleged the existence of the City of Chicago Ordinance ch. 76, above described, purporting to incorporate the Structural Work Act and also providing that provisions of the American Standard Safety Code for Building Construction promulgated by the American Standard Association shall be considered as accepted engineering practice regarding safeguards during construction. Count 3 also alleged various violations of other portions of the ordinance.

On February 3, 1970, after verdict, plaintiff filed amendments to the complaint as previously amended. Count 2 was amended to add allegations regarding placement of the ladder by defendants; failure of defendants to discover improper placement of the ladder near the unbarricaded hole; failure of defendants to require adequate lighting in the area and failure to supply safe barricades for the opening. Count 3 was amended to allege violations of chapter 75, sections 1 and 1(c) and chapter 76, section 4 of the Municipal Code of Chicago in that the opening in the floor should have been covered or protected; openings through which hoists operated should have been properly enclosed and guards should have been provided at every point of danger at all sides of the open areaway exceeding three feet in depth.

Defendant O'Neil filed a motion to dismiss the amended complaint. The court heard this motion before trial and denied it. The cause then proceeded to trial not on the theory of negligence as originally advanced by plaintiff, but upon a theory of wilful violation of the Structural Work Act and also of the City ordinance. This ordinance in effect embodies the state law and attempts to expand it by reference to safety code standards of the American Standard Association, together with other ordinances of the City pertaining to precautions during construction.

Plaintiff followed these theories all throughout the trial of the cause and the court overruled objections made by defendants. In examining an O'Neil engineer, counsel for plaintiff brought before the jury various provisions of the manual of Accident Prevention for Contractors as well as various health and safety rules of the State of Illinois. Plaintiff took the position, approved by the trial court, that compliance with these various safety codes was required by the construction contract. The court then also permitted counsel for plaintiff to read to the jury various portions of the City ordinances as above described.

At the close of the case, the court gave Plaintiff's Instruction No. 3. This purported to be an instruction on the issues based upon IPI 2d 60.01 pertaining to violation of a statute or ordinance. This instruction told the jury that a City ordinance provided that all persons having control or supervision of a building in the course of construction should comply with the Structural Work Act of Illinois. It stated that the ordinance provided that the American Standard Association rules should be considered as accepted engineering practice; and, further, it described three provisions of the City ordinances requiring openings in floors to be protected; openings through which hoists operated to be enclosed on all sides and guards to be required at all sides of every open areaway exceeding three feet in depth. The instruction then stated plaintiff's claim that he was injured as a proximate result of the violation of the ordinance, the denial of defendants that they were guilty of the violations and their additional denial that plaintiff was injured or damaged to the extent claimed. In this regard, the instruction was patterned after the usual and familiar instruction on the issues. (IPI 2d 20.00 and following.) However, the instruction as given contained no reference to negligence and no reference to denial by defendants that plaintiff was in the exercise of ordinary care as well as no reference to any claim by plaintiff that he was in the exercise of ordinary care. The instruction did not follow IPI 2d 60.01 on violation of a statute or ordinance in that it did not tell the jury merely that they could consider the fact of violation with all the other facts and circumstances in evidence in determining the existence of negligence.

We must first determine the legal effect of the City ordinance purporting to adopt the Structural Work Act and in effect to expand its provisions. The statute applies to persons having charge of construction. The ordinance applies to all persons having charge of construction. The ordinance applies to all persons having control or supervision of construction. In this regard, the ordinance does not conform to the statute. The ordinance also provides that provisions of the code of the American Standard Association should be considered as accepted engineering practice. In this regard, the ordinance purports to exceed the bounds of the statute and to impose absolute liability upon any person who violates the code of the American Standard Association during construction.

• 21, 22 It is the law of Illinois that when the sovereign state has entered into a specific area and has provided regulations by statute governing the activities in question, no ordinance of any municipal corporation inconsistent with the statute can have legal force and effect. No city ordinance in Illinois can "* * * add to, subtract from, or affect the provisions of a statute * * * and if it is in conflict with a statute it is invalid * * *." (Traders Development Corp. v. Zoning Board, 20 Ill. App.2d 383, 392, 156 N.E.2d 274.) The wisdom of this principle is readily apparent. Lawyers accustomed to orderly thinking and classification could hardly conceive of a situation in which every municipality could eliminate or expand statutes to modify or enlarge legal causes of action in any of the myriad affairs of life regulated by any statute. The ordinance depended upon by plaintiff is, in our opinion, a nullity as regards the rights of the parties in the case at bar. It has no legal effect of any kind insofar as it purports to restrict or expand the operation of the Structural Work Act within the boundaries of Chicago.

Plaintiff proceeded before the jury, however, as though the ordinance gave additional grounds for action under the Structural Work Act far greater than those given by the Act itself. In our opinion, this was prejudicial error which requires reversal of the judgments herein. One of the damaging results of this proceeding was to permit plaintiff in effect to establish a cause of action for violation of ordinances on the theory of absolute liability without requiring plaintiff to prove his own freedom from contributory negligence and the negligence of defendants. It is true, as plaintiff urges here, that the health and safety regulations, which plaintiff's counsel read to the jury, were incorporated into the construction contract. These matters would have been material and, therefore, properly read to the jury if the issues of negligence and contributory negligence were pertinent to the case. Under the circumstances shown here, the reading of these matters was error. They had no bearing upon the issues in the case and served only to confuse the jury.

In Jones v. S.S. & E. Corp., 112 Ill. App.2d 79, 250 N.E.2d 829, this court reversed a judgment for plaintiff because of an instruction which described to the jury the provisions of the Health and Safety Act of Illinois. This instruction merely explained certain provisions of the Act and also told the jury that they could consider a violation of this Act, together with all other facts and circumstances in evidence, in determining whether there had been a violation of the Structural Work Act. This court held that this was erroneous since the statute in question covered only the relationship between employer and employee and plaintiff was not an employee of defendant. Similarly, in the case at bar, violations of an ordinance should not be considered in determining whether the Structural Work Act was violated. Further, in Jones, the jury was merely told that violations of the other statute were to be considered by them with all the other facts and circumstances in evidence in determining whether the Structural Work Act had been violated. The criticized instruction in the case at bar (Plaintiff's Instruction No. 3) merely stated the claims of the parties. This was combined with a burden of proof instruction based upon the Structural Work Act. The result was the elimination of all other issues in the case, including contributory negligence and negligence, except the one issue of violation of the Structural Work Act, as well as violation of the provisions of the ordinance.

The recent decision of this court in Avery v. Moews Seed Corn Co., 131 Ill. App.2d 842, 268 N.E.2d 561, aptly illustrates this point. There, conversely to the situation at bar, plaintiff claimed that he was injured by defendant's negligent violation of rules adopted under the Illinois Health & Safety Act. The court permitted plaintiff's attorney to read these rules to the jury. Defendant objected to this upon the authority of Jones. This court rejected defendant's contention. The court pointed out that in a Structural Work Case, such as Jones, it was improper to read rules of this type to the jury. But, in a case based upon negligence, it was permissible to bring the rules before the jury under proper instructions by the court in attempting to establish a standard of care as a basis for proof of negligence.

• 23, 24 As also pointed out by defendants, this error was accentuated by the fact that, over objection, the court permitted counsel for plaintiff to read the City ordinances to the jury. Reading of legal matters, whether statutes, ordinances or decided cases, to the jury has been condemned by the decisions of our courts for many years in civil cases; and, for a shorter period, even in criminal cases. (See People v. Bruner, 343 Ill. 146, 175 N.E. 400.) In McGinnis v. Cosmopolitan Nat. Bank & Trust Co., 114 Ill. App.2d 113, 252 N.E.2d 56, this court criticized such proceeding and pointed out that "[p]roper trial practice dictates that it is for the court to instruct as to the law and not counsel." 114 Ill. App.2d 113, at 117.

Plaintiff attempts to support his Instruction No. 3 on the ground that it is in the language of the applicable ordinance. This may be literally correct but it overlooks the points that this ordinance should never have been brought into the case in the manner attempted and that the instruction served only to compound other errors previously made, as above noted. We have carefully examined the record regarding plaintiff's contention that the defendants failed to preserve the point regarding error in this instruction. We find that this point was properly raised by defendants at the conference on instructions as well as in their post trial motion. In addition, the instruction itself was one facet of a proceeding which was erroneous from its inception. Defendants made repeated objections to the filing of the additional complaint predicated upon the ordinance, to the reading of various matters and the ordinance to the jury, to the resulting effective elimination of issues of negligence and contributory negligence in matters not covered by the Structural Work Act and finally to the instruction itself. We agree with the contention made by defendants that there was reversible error in this aspect of the case.

• 25 The final point raised by O'Neil pertains to allegedly prejudicial final arguments made to the jury by plaintiff's counsel. O'Neil's brief details 23 instances of allegedly unfair argument. Counsel for O'Neil objected in certain, but not all, of these instances and these objections were overruled. In a strong response to this argument, plaintiff urges that the alleged improper remarks were taken out of context by O'Neil; they were not improper or prejudicial; and that no objection was made as to many or most of them. Plaintiff further urges, with good legal justification, that the control and direction of argument to the jury is within the discretion of the trial judge and that this court must indulge in every reasonable presumption that this discretion was properly exercised. (Elizer v. Louisville & Nashville R.R. Co., 128 Ill. App.2d 249, 253-254, 261 N.E.2d 827.) O'Neil seeks to excuse its failure to object in every instance upon the theory that, since several objections had been made and overruled, it was not necessary to repeat the objection. See Bruske v. Arnold, 44 Ill.2d 132, 137, 254 N.E.2d 453.

We need not pass upon these conflicting claims. The trial errors above indicated are alone sufficient to require reversal of the judgment and remandment of the cause. In addition, should the cause be tried again, the situation regarding argument is not likely to repeat itself. It will be sufficient for us, respectfully, to direct the attention of all counsel in this case to the splendid statement contained in the opinion of this court, speaking through Mr. Justice Schwartz, in Durkin v. Lewitz, 3 Ill. App.2d 481, 495, 123 N.E.2d 151. The court denounced improper arguments in personal injury case as having "* * * a long and dishonorable tradition in jury trials * * *" and called upon all members of the bar for fair presentation in final argument and the avoidance of extremes therein as a matter of professional necessity.

• 26 The final matter to be considered is the ruling of the trial court in directing a verdict for indemnity in favor of the City and against O'Neil. The conclusion above reached that the judgment in favor of plaintiff and against O'Neil and the City should be reversed and the cause remanded for a new trial, requires necessarily that the judgment for indemnity in favor of the City and against O'Neil also be reversed "* * * as it is dependent upon the outcome of the case in chief." (Jones v. S.S. and E. Corp., 112 Ill. App.2d 79, 97, 98, 250 N.E.2d 829, citing Bohannon v. Ryerson and Sons, Inc., 15 Ill.2d 470, 475, 155 N.E.2d 585.) But, since the point has been properly raised and briefed by the litigants, we shall decide it in the hope that this may at some future date facilitate a determination of the rights of the parties.

The right of the City to indemnity against O'Neil depends upon the provisions of the written contract between them and also upon the bond entered into in connection with performance of the contract. The contract required O'Neil to "* * * observe and comply with all Federal and state laws, local laws and ordinances and regulations which in any manner affect the conduct of the work * * *." O'Neil agreed to indemnify the City "* * * against any claim or liability arising from or based on the violation of such law, ordinance, regulation * * * whether by himself, or his employees."

• 27, 28 The bond between these parties also provided for indemnity by O'Neil to the City "* * * against all suits or claims that may be based on any injury to persons or property * * * in the course of the performance of this contract * * * whether or not it shall be claimed that the injury was caused through a negligent act or omission of the contractor [O'Neil] or his employees * * * or of the City of Chicago or its employees * * *." The bond also required O'Neil to indemnify the City "* * * against all loss, damages, claims, liabilities, costs and expenses * * * in consequence of the granting of said contract * * * or which may in anywise result in any injury or death to any persons * * * arising directly or indirectly from or in connection with work performed or to be performed under said contract by said contractor."

It is difficult to conceive of a stronger or more inclusive contract of indemnity. Not only is the general language sufficiently broad by itself to include indemnity against the negligence of the City itself as indemnitee (see Deel v. United States Steel Corp., 105 Ill. App.2d 170, 184-185, 245 N.E.2d 109), but this contingency is expressly covered. Furthermore, the verdict of the jury necessarily included a finding that O'Neil had violated the Structural Work Act. This determination of the issue bound O'Neil and it could not be raised again to question the legal effect of the indemnity contract and bond. (Sanitary District of Chicago v. United States Fidelity & Guaranty Co., 392 Ill. 602, 612, 65 N.E.2d 364; Palmer House Co. v. Otto, 347 Ill. App. 198, 106 N.E.2d 753.) Thus, the trial court was completely correct in directing a verdict for indemnity in favor of the City and against O'Neil.

The judgment in favor of plaintiff and against O'Neil and the City and also the judgment for indemnity in favor of the City and against O'Neil are reversed and the cause is remanded for a new trial on Count II of plaintiff's complaint.

Judgments reversed and cause remanded for a new trial.

Mr. JUSTICE EGAN specially concurring:

I concur with Mr. Justice Goldberg in his determination that trial errors require a new trial. The failure of the plaintiff to mention the ladder in his deposition, even though it might not constitute a direct contradiction, may be shown. People v. Bonham, 348 Ill. 575, 181 N.E. 422; Carroll v. Krause, 295 Ill. App. 552, 15 N.E.2d 323.

Count III, which was based on the ordinance, should not have been submitted to the jury. That Count alleged, in substance, that anyone who violated the specific sections of the ordinance or who did not comply with the provisions of the American Standard Safety Code ipso facto violated the Structural Work Act. I agree with Justice Goldberg's reasoning and holding with respect to the ordinance, but I would make a further observation. In my opinion, chapter 76-1 (b) may not support even a negligence count. That subsection provides: "The provisions of the American Standard Safety Code for Building Construction of the American Standard Association * * * shall be considered as accepted engineering practice with respect to safeguards during construction." This subsection constitutes an unlawful delegation of legislative authority to the American Standard Association. (See Garces v. Department of Registration and Education, 118 Ill. App.2d ...


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