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Carruthers v. B.c. Christopher & Co.

JULY 20, 1973.

RAY CARRUTHERS, PLAINTIFF-APPELLANT,

v.

B.C. CHRISTOPHER & COMPANY ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Fayette County; the Hon. PAUL W. HICKMAN, Judge, presiding.

MR. JUSTICE GEORGE J. MORAN DELIVERED THE OPINION OF THE COURT:

Plaintiff appeals from a judgment of the Circuit Court of Fayette County granting defendants' motion for summary judgment in a suit brought by plaintiff pursuant to the Illinois Structural Work Act (Ill. Rev. Stat., ch. 48, par. 60-69).

Plaintiff's complaint alleged that the defendants B.C. Christopher & Company and John Shanks, as its resident manager, were in charge and control of certain structures known as grain elevator and grain bins and in charge of certain alterations and repairs thereon when plaintiff was injured while working on an unsafe support or other mechanical contrivance furnished by the defendant in the performance of the work.

Plaintiff Carruthers was an employee of Okaw Valley Construction Company, hereinafter Okaw Valley. Defendant B.C. Christopher & Company, hereinafter Christopher Company, ran a grain elevator business at Vandalia, Illinois and at other locations, with defendant John Shanks as its managing agent at Vandalia. Manager Shanks determined that several cylindrical grain chutes, commonly called "spouts" or "spouting", were worn at the bottom and leaking grain. Testimony by Shanks indicates that the practice of Christopher Company and the bin business was to turn these spouts approximately 180 degrees every two or three years, prolonging the use of the spouting and preventing grain from falling or leaking out of the worn spouts. He estimated that a 30-foot length of spout would weigh 300 or 400 pounds, and testified that turning the spouts was a two-man operation.

The turning process required the two men to work at or near the tops of the elevator or bin structures. The spouting runs from the elevator down to the various bins. At the top of the elevator, the spout is attached to a structure called a "leg". There is a railing approximately three feet high at the top of the leg where the worker must stand to turn the spout. Compton was working at the high end of the spout, standing at the leg with the protective railing. The bottom end of the spout, where plaintiff Carruthers was working, is attached to the top of the bins at their caps. The spout is fastened to the cap, and the cap in turn is screwed or locked to the bin. In order to turn the spout, it is necessary to unfasten the cap. The cap is about three feet in diameter. There is no guard or railing around the cap, although the worker must stand there in order to turn the spout. Nothing in the briefs or abstracts indicated why there was no railing on the caps, or whether workers stood on the caps for any purpose other than turning the spouts, nor does the record indicate why railing is put on the leg, or for what other purposes workers would stand on the leg. Plaintiff was standing on the cap which was unscrewed or unfastened from the bin, and which had no railing. From this position, plaintiff fell approximately 37 feet to the ground, sustaining injuries.

Defendants made a motion for summary judgment (with attached discovery depositions and an affidavit) for the reasons, inter alia:

"2. The defendants were not the owners of the premises where plaintiff fell; defendant B.C. Christopher and Company was lessee of the premises and John Shanks was its employee.

3. Neither B.C. Christopher and Company nor its employee John Shanks nor any other employee exercised any supervision over the work being done at the time of the occurrence, gave no directions concerning the manner of doing the work, furnished no equipment in connection with the performance of the work but simply contracted with Okaw Valley Construction Company for it to perform the work of turning the elevator spouts. The plaintiff and one Kenneth Compton were employees of Okaw Valley Construction Company and said employees and their employer furnished equipment used in performing said work.

4. Okaw Valley Construction Company and its foreman Kenneth Compton were the persons in charge of the work and they are the persons who directed the work, supervised the work and performed the work.

Plaintiff Carruthers testified on his deposition that he was a construction laborer working for the Okaw Valley Construction Company on April 29, 1969. He reported for work that morning and was sent over to the B.C. Christopher elevator to help Kenny Compton turn some spouts. He went there in his car and Compton went in his truck. Some of the tools were furnished by him, some by Compton and some by Okaw. When they got to the Christopher Company they both went into the office where they saw Christopher's manager, Johnnie Shanks, who asked them if they were there to fix the spouts. Kenny then said, "Well, we just as well get at it," and they both went outside. He further testified that neither Shanks nor anyone from Christopher gave them any directions on how to do the work. When asked if there was any kind of scaffolding that might have prevented his accident, he stated:

"Yes, sir. In this picture and on the bins at Brownstown you notice that there is an angle iron brace on this with a cradle above the first flange — same way on this one. This supports the extra weight in case the bolts shear off. And I would say if this bin would have had this angle iron brace here that this bolt would not have sheared off and this bolt would not have, and it wouldn't have had enough weight to pull this boot out of the bin."

Compton testified that he worked for Okaw Valley as a carpenter on the day of the accident and that LeRoy Taylor, who ran that company, sent him and Carruthers to Christopher's to turn some spouts on that day. He took some of Okaw's equipment along and some of his own. Nobody told him or Carruthers how to do the work. When asked if there could have been a scaffolding furnished for the place where plaintiff was working, he stated:

"There could have been a scaffolding built but it would have been an expensive and quite lengthy process to have built it. Which, as I see now, would have been the best deal, maybe, to have done."

With reference to his conversation with Shanks concerning the agreement to do the work, his testimony was as follows:

"Q. Tell me when the conversation first started about turning the spouts. Tell me the time before April 29, 1969, the conversation was held.

A. Well, he wanted to know if I could do it and I said that I could.

Q. What did he ask you, Kenny, what did he ask you — generally, the words.

A. Oh, I would say that he asked me if I wanted to or if I would, probably, turn those spouts. We had talked over several different things that needed to be done.

Q. Was he going to engage you as an individual or on behalf of Okaw Valley?

A. Well, it started out he was going to engage me as an individual. And then, I don't remember whether I said at that time I would rather do it under Okaw Valley or whether I talked to LeRoy first. But I know that LeRoy — we ...


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