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Rooney v. Morton Salt Building

MAY 8, 1974.

JOHN P. ROONEY, PLAINTIFF-APPELLANT,

v.

MORTON SALT BUILDING, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, John P. Rooney, was injured on June 1, 1964, in a one-story fall off a ladder while working as a tuckpointer on the Morton Salt Building. On April 29, 1966, he brought this action against the owner of the building pursuant to the Structural Work Act. (Ill. Rev. Stat. 1963, ch. 48, § 60 et seq.) The jury returned a verdict for defendant, and the trial court denied plaintiff's post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial. Plaintiff appeals, presenting the following issues for review:

(1) Was the verdict against the manifest weight of the evidence?

(2) Is plaintiff entitled to a new trial because of error in the jury instructions?

The evidence adduced at trial showed that defendant hired Hofer and Associates to perform certain tuckpointing work on its building at 110 North Wacker Drive in Chicago. Hofer agreed to furnish the equipment, hire the tuckpointers, and provide the foremen and supervisors. Morton Salt Building filed a third-party complaint against Hofer for indemnity should it be held liable to plaintiff.

The plaintiff was an experienced tuckpointer, employed by Hofer when the accident occurred. His injuries resulted from a fall sustained when the wire holding an extension ladder broke.

Plaintiff and a co-worker, Joseph D. Burke, had used the ladder for several weeks before the accident and for 2 hours immediately prior thereto. Before plaintiff got on the ladder, he and Burke tested it by pushing down and also checking the clamps that supported it. "It looked like everything was in place," plaintiff testified, "or I wouldn't have got on it."

Plaintiff stated at trial that Phillip Lundberg, defendant's building superintendent, told him directly how all the work was to be set up and performed. Plaintiff testified further that it was necessary to use an extension-type ladder to go over the top of the building because Lundberg instructed the workmen to avoid going through the office.

Phillip Lundberg discussed the work progress on a daily basis with Hofer's foreman, Jerry Hofer. However, Lundberg testified that he never gave specific instruction to the foreman or plaintiff, and that the way the work was done was left up to the tuckpointers. Lundberg denied seeing the ladder which collapsed before the accident and telling the workmen they could not walk through the office of the building. He stated that plaintiff's foreman was told the workmen could walk through the building and that boards and mats were provided for the men to wipe their feet before walking through any office.

Joseph D. Burke, plaintiff's co-worker, testified that the workmen took all their orders directly from the foreman and that the regular procedure in the trade is that the foreman gives instructions. He stated further that he never heard Lundberg say that the workmen were not to come through the building.

At the close of the evidence, the jury returned a verdict for defendant. Plaintiff appeals from the trial court's denial of his motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

The Structural Work Act provisions that are pertinent to this appeal provide:

"§ 60. * * * [A]ll scaffolds, hoists, cranes, stays, ladders * * * erected * * * by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any * * * building * * * shall 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 * * *.

§ 69. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building * * * within the provisions of ...


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