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Mcnellis v. Combustion Engineering

JULY 25, 1973.

DOROTHY MCNELLIS, ADMR. OF THE ESTATE OF CHARLES B. MCNELLIS, DECEASED, ET AL., PLAINTIFFS-APPELLEES,

v.

COMBUSTION ENGINEERING, INC., ET AL., DEFENDANTS — (COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. HARRY S. STARK, Judge, presiding.

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

Dorothy McNellis, individually and as administrator of the estate of Charles B. McNellis, deceased, brought this action in the Circuit Court of Cook County to recover various damages resulting from fatal injuries sustained by her husband while unloading a piece of equipment from a railroad car at a construction site. The original complaint, filed August 30, 1965, consisted of six counts. Named as defendants were Commonwealth Edison Company, owner of the premises, Combustion Engineering, Inc., the prime contractor, Air Preheater Company, manufacturer of the equipment, and the Elgin, Joliet and Eastern Railway, supplier of the car.

Count I charged all four defendants with negligence in loading the car and in failing to warn the decedent that the equipment as loaded was inherently dangerous. Count II contained substantially the same allegations and sought damages under the family expense statute (Ill. Rev. Stat. 1969, ch. 68, par. 15). Counts III and IV charged the Elgin, Joliet and Eastern with providing a car of improper design for the intended load and with failing to provide adequate fixtures within the car to secure the load. Counts V and VI charged Commonwealth Edison with negligence in permitting Combustion Engineering to perform the unloading in an unsafe manner and in failing to provide the decedent with a safe place in which to work.

On July 11, 1967, an additional count was filed and also designated as Count VI. This count charged Commonwealth Edison and Combustion Engineering with violating certain provisions of the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) in that they failed to provide adequate stays and supports to secure the equipment within the car. On October 20, 1970, the day of trial, an amended complaint was filed in which this count was replaced with a similar one, designated Count VII, charging Commonwealth Edison and Combustion Engineering with violating the Structural Work Act in that they failed to provide adequate stays and supports, failed to operate a crane located at the job site in such a way as to prevent the equipment from falling as it was unloaded and wilfully placed the crane in an unsafe and unsuitable manner by failing to attach it to the load. The defendants objected to the filing of the amended complaint on the grounds that it invoked for the first time a Structural Work Act recovery in an action five years old, that it added a new party (Dorothy McNellis individually), that it enlarged the areas of recovery and that the Structural Work Act is an unconstitutional preference to a certain class of persons.

In the early part of the trial, court granted a directed verdict in favor of the Elgin, Joliet and Eastern Railway on Counts III and IV of the amended complaint. At the close of the evidence, it directed a verdict in favor of the defendants on Count II. Following this, the plaintiff withdrew Counts I, V and VI, leaving only count VII to go to the jury. The jury returned a verdict against the plaintiff and in favor of Combustion Engineering. No appeal was taken from this judgment. The jury also returned a verdict in favor of the plaintiff and against Commonwealth Edison and assessed damages at $160,000. Judgment was entered on the verdict and Commonwealth Edison appealed directly to the supreme court, alleging that the constitutionality of the Structural Work Act was in issue. The supreme court transferred the cause to this court for disposition.

The pertinent facts are as follows. In 1961 Commonwealth Edison and Combustion Engineering entered into a written agreement under the terms of which Combustion was to design and fabricate two steam generating units and deliver them to the site of a power plant being constructed by Commonwealth Edison near Joliet, Illinois. The agreement included an option, exercisable by Commonwealth Edison, to require Combustion to perform the additional work of unloading, erecting and finishing the units. Commonwealth Edison exercised this option sometime prior to September, 1963. The units were to be shipped to the job site in pieces and assembled within the power station building, which was being constructed by another contractor. With the approval of Commonwealth Edison, Combustion subcontracted the task of unloading the various components of the units and erecting them to Power Systems, Inc.

Construction material was brought to the job site by rail. Commonwealth Edison provided a number of temporary sidings to be used by the contractors for unloading and storing such materials. Cars destined for the job site were dropped off on one of the sidings by the Elgin, Joliet and Eastern Railway, then moved to an appropriate location for unloading or storage by the construction crews, who used a device known as a track mobile owned by Commonwealth Edison.

The sidings were located approximately one half mile from the site of the building. Material which arrived at the site ahead of schedule was unloaded and stored in the vicinity of the sidings until needed. It was then reloaded on flatcars or trucks and transported to the building for installation.

In August, 1963, the Air Preheater Company, a division of Combustion Engineering located in Wellsville, New York, loaded two axial seal pedestals into a railroad gondola car for shipment to the job site. The pedestals were components of air preheaters, which, in turn, were part of the steam generating units to be furnished by Combustion. Each pedestal was approximately 115 inches long and weighed 20,000 pounds. In appearance each resembled a curved rectangle. Hanging off of each was a single flat plate approximately twelve feet long. The width of each piece tapered from 139 inches to 70 inches. The two pedestals were loaded in the car parallel to each other and parallel to the sides of the car. They were secured to the car by "tie rods" which extended from the pedestals through holes in the sides of the car and were capped off with nuts. They were also secured by pieces of scrap steel, which were welded to both the pedestals and the sides and bottom of the car.

On September 3, 1963, a yard crew employed by Power Systems undertook to unload the pedestals from the car. The crew consisted of Ray Suska, the foreman, James Chaney, Charles McNellis and an unidentified man. All of the men were journeyman boilermakers and had unloaded similar equipment before. Prior to unloading the four men examined the pedestals to determine the best method of removing them. In the vicinity of the car were two cranes having lifting capacities of 30 and 50 tons respectively. Operators were assigned to both cranes. Both were in good operating condition and neither was being used on any other job. They considered attaching a line from one of the cranes and taking a strain on it prior to cutting loose the scrap which held the pedestals in place. However, the three crew members decided that the "braces would hold" and that they would go ahead without the cranes. This was the decision of the foreman as well.

Chaney and McNellis climbed into the car and began cutting the plates with a torch. Chaney did the actual cutting while McNellis kept the hose straight and held the torch as Chaney moved around the load. Four pieces of scrap held the load to the car. When Chaney cut the fourth plate, the pedestals fell, pinning McNellis to the side of the car. The crew righted the plate with the 50 ton crane and freed McNellis, but he died six weeks later as a result of his injuries.

On appeal Commonwealth Edison contends the following:

1. that the classification of employees granted or denied benefits by the Structural Work Act is not related to work that is either "structural" or "extra hazardous" and is so vague and arbitrary as to render the statute unconstitutional;

2. that the verdict is against the manifest weight of the evidence;

3. that the court should have directed a verdict for ...


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