APPEAL from the Circuit Court of Cook County; the Hon. L.
SHELDON BROWN, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1974.
The plaintiff, James E. Testa, a welder, who was employed by Anzelc Welding Company in Joliet, Illinois, was injured while assisting in the installation of an overhead type door in the plant owned by defendant, Kaluzny Brothers, Incorporated. A three-count complaint was filed on April 15, 1969. In count I, a violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, pars. 60-69) was alleged in that defendant was in charge of the work being done at its plant and that plaintiff was injured as a result of the collapse of a forklift truck, operated and controlled by defendant, which was being used in the installation of the overhead door. In count II it was alleged that the injuries to plaintiff were due to the negligent operation and/or maintenance of the forklift by defendant. In count III it was alleged that the forklift was under the sole control of defendant and that while plaintiff was elevated on the forklift it collapsed causing injuries to plaintiff. An answer was filed by defendant. A third-party complaint was also filed by defendant against Charles Anzelc Welding Company, plaintiff's employer, which by order of the court was dismissed with prejudice on September 14, 1972. Interrogatories were submitted and answered and the cause proceeded to trial before a jury on counts I and III. A general verdict in favor of the defendant was returned by the jury. Judgment was entered for defendant and plaintiff appeals.
The record shows that on the morning of September 23, 1968, plaintiff, a welder, 20 years of age, first reported for work at Anzelc Welding Company and was assigned to go with his foreman, Charles Keltz, to install an overhead type door in the east wall of defendant's plant. They arrived shortly thereafter at defendant's plant in a company truck. The door opening where the overhead door was to be installed was approximately 16 feet wide and 14 feet high. The preliminary work involved removing the old door. Then, in order to put up the new door, an angle iron frame which functioned to hold the roller bar for the new door had to be installed. After this was done the roller bar was to be put in place at the top of the door opening. The roller bar was made of steel, approximately 17 feet long and 6 inches in diameter, with a spring inside. Estimates of its weight varied from 400 to 700 pounds. There was no way that the roller bar could have been hoisted to the top of the door opening without some equipment to lift it.
The defendant owned a forklift truck. Keltz asked Edward Kaluzny, an officer and employee of defendant, if they could use the forklift to raise the roller and he agreed. Kaluzny then drove the forklift, picked up the roller bar on the forks and brought it over to the door opening. Keltz and Testa testified that a first attempt to lift the roller bar to the top of the door opening was made, but that the forklift could only raise the bar to within 6 inches or a foot of the required height. Kaluzny decided to use a platform in order to get the additional height needed, and he set the roller bar down, drove the forklift truck to another location, and returned with a platform. It was "bed shaped," made of steel, about 8 feet long, 6 feet wide, and 4 feet high, with four legs for a base and railings on two sides which extended up about 3 1/2 feet above the level of the platform. Kaluzny lifted the roller bar with the forklift and placed it on the railings of the platform. The plaintiff stepped onto the platform to hold the bar in place. He testified that this was necessary to keep the bar from rolling off. Keltz ascended a ladder next to the door opening to assist in placing the roller bar in position when it was elevated to the proper height. Kaluzny then lowered the forks of the lift underneath the platform and began to raise the platform, with the roller bar and plaintiff on it.
Kaluzny raised the platform about 6 to 10 feet and then the forklift collapsed. The bar first rolled against the plaintiff, pinning him against the mast of the forklift, and then everything went forward and fell to the ground. Plaintiff fell on his back on top of the steel platform. The forks had come out of the lift truck and were laying on the ground. The plaintiff suffered serious multiple injuries.
Edward Kaluzny testified that after the accident he inspected the forklift to determine what had caused the collapse. He found that a bearing had come out of the mast of the forklift. He discovered the bearing on the ground and placed it on a bench inside the shop that day, but it was never produced as evidence because it could not later be found.
• 1 At the close of the trial, plaintiff's counsel tendered an instruction that contributory negligence of the plaintiff was not an issue in the case, and it was refused. Over plaintiff's objection the following instruction was given:
"It was the duty of the plaintiff, under the charges of Count III, before and at the time of the occurrence, to use ordinary care for his own safety. That means it was the duty of the plaintiff to be free from contributory negligence."
Plaintiff contends on appeal that the court erred in not instructing the jury to find the issue of contributory negligence in favor of the plaintiff. We agree and think that this question was not in the case and that the instruction given tended only to confuse and mislead the jury.
• 2, 3 We initially note that the issue of contributory negligence had no relation to count I based on the Illinois Structural Work Act. The object and purpose of that Act is to provide protection for workmen against sustaining injuries when employed in a dangerous occupation. For this reason the defense of contributory negligence is not available to a defendant in an action brought under the Act. See Schultz v. Ericsson Co., 264 Ill. 156, 106 N.E. 236; Vykruta v. Thomas Hoist Co., 75 Ill. App.2d 291, 221 N.E.2d 99.
In regard to count III of the complaint sounding in negligence, we recognize that contributory negligence is ordinarily a question of fact to be decided by the jury. (Jines v. Greyhound Corp., 33 Ill.2d 83, 85, 210 N.E.2d 562, 564.) The defendant directs our attention to Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, where the Illinois Supreme Court held that issues of negligence and contributory negligence become questions of law "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.
The defendant stresses the fact that the jury could reasonably conclude that plaintiff abandoned a safer way of performing the work and voluntarily placed himself in a position of peril, that neither plaintiff nor his foreman brought any chokers, wire, cable or rope to secure the roll bar on the lift. According to defendant, plaintiff's presence on the lift was apparently justified only on two grounds to keep the roller bar from rolling off and to push it into position once it was lifted to the proper height and the record shows sufficiently that his presence there was not necessary for either of these purposes and further, that plaintiff could not physically accomplish these purposes from his position on the lift. Since the bar weighed somewhere between 400 and 700 pounds it is argued that the jury might reasonably conclude that plaintiff could not control the bar if it did start rolling and could be injured if it rolled backward pinning him against the mast, and that it would be difficult to push the bar into position by applying pressure at the midpoint of the bar, a better way being to climb ladders at either end of the raised bar and apply pressure there. Defendant thus claims that plaintiff's injuries resulted not only from the collapse of the forklift, but from a combination of the forklift collapse and plaintiff's unjustified presence on the lift at the time of the collapse.
It is undisputed that the roller bar was too heavy to lift into place without the use of equipment such as the forklift. It is also undisputed that the load collapsed when a bearing in the forklift broke, and plaintiff, who was being ...