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Pasko v. Commonwealth Edison Co.

SEPTEMBER 13, 1973.

MICHAEL E. PASKO, PLAINTIFF-APPELLEE,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT. — (CHICAGO & WESTERN INDIANA RAILROAD COMPANY ET AL., DEFENDANTS.)



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

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT:

Commonwealth Edison Company [defendant] appeals from a judgment rendered against it on a verdict for $155,000 in a suit by plaintiff, an employee of the A.A. Electric Company, an independent contractor. The plaintiff sought damages for injuries he sustained while installing electric poles for his employer in accordance with its contract with defendant. The Chicago & Western Indiana Railroad Company, the Erie-Lackawanna Railroad Company, and the Monon Railroad Company were also made defendants, but directed verdicts were entered in their favor at the close of the plaintiff's evidence.

Defendant contends it owed no duty to plaintiff to provide him with a safe place to work, to warn him of dangers which were apparent to all, or to require the use of metal liners, caissons, or shoring in the excavations for the electric poles. Defendant also contends that the plaintiff was guilty of contributory negligence as a matter of law, and that the verdict and answers to two special interrogatories submitted to the jury are against the manifest weight of the evidence. The facts follow.

In July of 1964, plaintiff was employed as a journeyman lineman with the A.A. Electric Company and, according to his testimony, was experienced in working in all types of soil conditions. A.A. Electric Company, pursuant to its contract with the defendant, undertook to install a series of electric poles in the vicinity of 126th Street and Torrence Avenue, in Chicago. The poles were to be supplied by defendant and installed at predetermined points according to defendant's specifications, and A.A. Electric Company was to furnish labor and equipment necessary to complete the operation. Clause 9 of the contract has particular relevance to the issues, and is presented in substance as follows:

The contractor agrees to carry on the Work in a proper, safe and secure manner with the utmost care so as to prevent loss, injury or damage to the Owner's property or the property on the Premises and/or surrounding property, and so as to prevent danger to the lives or persons of individuals, and, if in the opinion of the Engineers the Work is not being so carried on, they may order the Work stopped immediately and not resumed until, in their opinion, proper means and methods have been adopted by the Contractor to insure the carrying on of the Work so as to prevent such threatened loss, injury, damage or danger. The Owner reserves the right, however, to order the Work stopped whenever the Work interferes or threatens to interfere with the operation of the Owner's equipment until such interference is eliminated. All equipment used on the Premises shall be in first class condition and any equipment which, in the opinion of the Owner or the Engineers, shall be considered inadequate or unsafe, shall be removed at the expense of the Contractor. The Contractor shall provide and maintain all passageways, guard fences, lights and other facilities, for protection required by the Public Authorities or rendered reasonably necessary by local conditions, also all barricades for the Work at all times, also for all openings during construction as required by any Public Authority, and shall erect proper shelters wherever necessary so as to properly protect the Work from damage. All barricades shall be so arranged as to insure the safety of the workmen and passersby and shall be kept painted with paint or a color approved by the Engineers. The Contractor shall plank over openings instead of providing barricades around openings, where, in the Owner's opinion or the opinion of the Engineers, the progress of the Work will be benefitted. All safety barricades and planking shall be installed to the satisfaction of the Engineers. * * * The Clause shall not be construed as implying any responsibility on the part of the Owner or the Engineers with regard to securing the safety of the work.

During the trial the plaintiff's attorney was allowed, over objection by defendant, to read Clause 9 to the jury.

Harry Pock (also spelled Pak), an employee of defendant, was assigned to the project as an inspector. Plaintiff testified that he saw Pock at the jobsite twice each day during the four to six-week period prior to plaintiff's injury. He further testified that John Noga, A.A. Electric Company's foreman, directed the placement of the poles, and that Pock merely inspected a pole after it was installed to insure that it was properly aligned, braced, and sunk to the right depth. Eldrid Johnson, a claim adjuster for defendant, testified that defendant provided no representative at the jobsite to stop the work if unsafe procedures were employed.

Immediately west of the line of poles being installed were railroad tracks owned by the Chicago & Western Indiana Railroad Company and also leased for use by other railroads, including the Erie-Lackawanna and Monon Railroads. These tracks were frequently traveled, and at points, ran as close as 40 to 50 feet from the projected line of poles to be installed. The soil in this area was loose and sandy where the poles were being placed.

Donald R. Delaney, defendant's field engineer, testified that prior to the commencement of work by plaintiff's crew, he visited the area to determine the best possible route for the line of poles. He stated that, although he took note of the topography, in making his decision as to the placement of the poles, he did not consider the condition of the soil or the effect the passage of trains would have on the soil.

The poles were installed by first excavating a hole with a truck-mounted auger; then the pole would be inserted into the hole by a crane, and the hole backfilled with dirt and concrete. The depth and width of the holes varied according to the length of the pole to be inserted. These ranged in length from 45 to 100 feet. Once a hole was excavated it would then be measured for proper depth. Occasionally, plaintiff or another member of the crew would climb down into the hole to expedite the measurement.

On July 29, 1964, plaintiff's crew experienced difficulty in digging these holes. Because of the sandy condition, dirt would pour back into the excavations. To remedy this a member of the crew would have to climb down into the hole and remove the backflow with a shovel. Plaintiff testified that vibrations resulting from passing trains caused the ground to quiver, and this quivering contributed to causing cave-ins of the excavated holes. Plaintiff further testified that Harry Pock was in the immediate area when these cave-ins occurred.

On the morning of July 29, 1964, the crew had installed three poles on level ground, and there was a cave-in with the third hole. Before noon on that day, after a fourth hole was excavated to a depth of six feet on the slope of a sandy railroad track embankment, a cave-in occurred, and this hole was re-augered to a depth of seven feet. After the crew returned from lunch, this hole was again deepened to nine feet, and another cave-in occurred which could not be alleviated by the auger because the hole had now become nine feet wide. Plaintiff volunteered to climb down into the hole and dig out the backflow, and after completing the task he climbed back to level ground. At this point another vibration in the ground caused two shovels of dirt to fall back into the hole. John Noga ordered the plaintiff to go back down into the hole and remove the dirt. Plaintiff said, "Well, I'll tell you John, when that ground quivers, before you can say Jack Robinson it's gone." Nevertheless, plaintiff obeyed Noga's order and again descended into the hole. He testified he did so because he felt that a foot of dirt was not too much to clean up, and it was part of his job. As he began to shovel out the dirt, one side of the hole caved in and buried him up to his knees. Another cave-in immediately followed and this buried him up to his chest. Plaintiff remained pinned in the hole with tremendous pressure bearing on his back and legs, until he was extricated an hour later by members of his crew and the fire department. As a result of this cave-in, a degenerative condition developed in plaintiff's back which, after unsuccessful corrective surgery, culminated in permanent disability.

The plaintiff, together with Noga and Louis Schoenberger, another A.A. Electric Company foreman, testified that in July 1964, a cave-in of the nature that injured the plaintiff could have been prevented by the use of steel casings or shoring in these excavations.

At the close of plaintiff's evidence the court directed verdicts in favor of Chicago & Western Indiana, the Erie-Lackawanna, and the Monon Railroad companies. Defendant's motion for a directed verdict was denied and its subsequent motion to strike certain parts of the complaint was also denied. Defendant offered ...


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