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Voss v. Kingdon And Naven





Appeal from the Circuit Court of Tazewell county; the Hon. James D. Heiple, Judge, presiding.


Rehearing denied May 29, 1975.

Iler Voss, the plaintiff, brought an action against the engineering firm of Kingdon and Naven, Inc., in the circuit court of Tazewell County, under the Illinois Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) and the defendant then filed a third-party action against the plaintiff's employer, Iber & Sons, claiming a right to indemnity. A jury trial was held, and at the close of all the evidence the trial court granted the defendant's motion for a directed verdict and dismissed the defendant's third-party action. The appellate court reversed and remanded for a new trial (9 Ill. App.3d 30), and we granted the defendant's petition for leave to appeal.

The plaintiff was hired by Iber & Sons, a contractor, as a steel worker in the construction of an extension to the city of Pekin's sewage and disposal plant. The plaintiff was working on the top of a wall on the afternoon of April 9, 1970, when his foreman notified him it was quitting time. As the plaintiff stepped from the wall onto a scaffold, the scaffold collapsed causing him to fall to the concrete footing eight feet below. It is undisputed that the scaffold collapsed because a vertical support, which had been used to anchor the scaffold, had been removed earlier in the day. There is no question as to the nature and extent of the plaintiff's injuries.

The single issue presented on this appeal is whether the trial court was correct in deciding that all of the evidence, viewed in the aspect most favorable to the plaintiff, so overwhelmingly favored the defendant that no contrary verdict based on that evidence could ever stand. See Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494.

Kingdon and Naven, Inc., the defendant engineering firm, entered into a contract with the city of Pekin (hereafter, the City) to provide preliminary and construction engineering services in the construction of an extension to the City's sewage and disposal plant. The contract provided, inter alia, that the defendant would make detailed plans, special proposals and estimates of cost for the project; provide continuous inspection of the work for compliance with plans and specifications as the construction proceeded; consult on the interpretation of plans and specifications and any changes under consideration as construction advanced; safeguard the City against defects and deficiencies on the part of the contractor but not guarantee the performance of the contract by the contractor; and conduct a final inspection of construction.

The contract between the contractor, Iber & Sons, and the City also referred in part to the authority of the defendant (the engineer). It provided:


The Contractor shall employ only competent and efficient laborers, mechanics, or artisans, and whenever, in the opinion of the Engineer, any employee is careless, incompetent, obstructs the progress of the work, acts contrary to instructions, or conducts himself improperly, the Contractor shall, upon request of the Engineer, discharge or otherwise remove him from the work and shall not employ him again, except with the written consent of the Engineer.


The Engineer shall have authority to suspend the work wholly or in part, for such period of time as he may deem necessary, due to conditions unfavorable for the satisfactory prosecution of the work, or to conditions which in his opinion warrant such action; or for such time as is necessary by reason of failure on the part of the Contractor to carry out orders given, or to perform any or all provisions of the contract." The contract between the contractor and the City, giving the engineer (the defendant) this extremely broad authority over the work, was drawn for the contractor and the City by the defendant.

Leon Kingdon, the president of Kingdon & Naven, Inc., when called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1969, ch. 110, par. 60), testified that in 1967 his firm contracted with the City to do preliminary and construction engineering for an extension to the Pekin plant. As the construction engineer his firm was obliged to make continuing inspections of all construction to insure that Iber's work complied with the contract's plans and specifications. He stated that, in his view, Kingdon and Naven's duty under the contract, to see to it that Iber's work met the contract's specifications, did not give it any control over how the contractor constructed the extension. He said that Kingdon and Naven had no responsibility to enforce safety regulations and testified that his firm could suspend work only if the construction on the extension was not performed in a workmanlike manner. However, on cross-examination he admitted that the contract stated that Kingdon and Naven could suspend the construction work if the contractor did not follow its special provisions, proposals and estimates of cost for orders and he acknowledged that the contract said nothing about suspending the work only if it was not being performed in a workmanlike manner. He also said that he had told the contractor to step up or to expedite the progress of the work on a number of occasions.

James Thompson, who was employed by the defendant as a resident engineer, was also called by the plaintiff as an adverse witness under section 60. He testified that he had been assigned to the sewage extension project three months prior to the plaintiff's injury. During that period he spent approximately 20 hours per week on the construction site inspecting materials the contractor used and insuring that the work was performed in a workmanlike manner. If he found a defect or deficiency in materials he would report it to his superiors and after conferring with them would then report it to the contractor's project engineer. He said on a number of occasions he was ordered by his superior to instruct the contractor to expedite work on the project. He testified that at about 4 p.m. on April 9, 1970, he saw the scaffold collapse at the project site. It collapsed, he said, because a vertical support which had anchored the scaffold had been removed that morning to permit workmen to work without obstruction underneath the scaffold. He said that although he knew the purpose of the vertical support was to prevent the scaffold from cracking in the center and collapsing, and was aware of its removal, he did not speak to anyone of the danger created.

The defendant contends that the directed verdict was proper because it was not "in charge of the work," which is required for one to be ...

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