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Hernandez v. Power Construction Co.





APPEAL from the Circuit Court of Cook County; the Hon. ALFONSE F. WELLS, Judge, presiding.


The plaintiff, Leopoldo Hernandez, brought this action under the Structural Work Act against the Power Construction Company, a general contractor, for personal injuries sustained in a fall from a scaffold. At a bench trial in the Circuit Court of Cook County the court granted the defendant's motion for judgment at the close of plaintiff's evidence, and the plaintiff appeals from that judgment.

The issues for review are whether the court abused its discretion when it refused to permit the plaintiff to file a jury demand when the defendant withdrew its demand immediately before trial, whether the judgment of the trial court was contrary to the manifest weight of the evidence, and whether the court committed reversible error in refusing to admit the opinion of an expert witness into evidence.

The plaintiff testified he was a laborer for Frank Miller & Sons Fireproofing, a bricklayer contractor. At the time of his injury he was employed in the building of the Washburn School at Hibbard and Elm Streets in Winnetka, Illinois. His duties consisted of making mortar, supplying the bricklayers with mortar and brick, building scaffolding and cleaning up.

On the afternoon of October 1, 1968, he had started to erect a scaffold on the central half of the building at the direction of his foreman. He testified it was a patent scaffold of a tubular type which came in two sections. It was in the shape of an "H" with crossbars that go from top to bottom connecting the two frames into one solid piece of equipment. Each of these frames is five to six feet high and can be placed one on top of another. The scaffold he built was over ten feet high.

He testified he did not erect any toe boards or mid-rails and had never been told to erect them on the more than half dozen scaffolds he had built on that job site. He had not seen any other scaffolding on that site that had guard rails, mid-rails or toe boards, and he had supplied brick and mortar to bricklayers who worked on scaffolds without such protections. He laid planks across the beams of the scaffold, but he did not fasten them in any way. His normal working hours were 7:30 a.m. to 3:30 p.m., but on that particular day he left at 2:30 p.m. He informed the foreman that the planking had not been completed on the east wall.

On October 2, he arrived at the job site at 7:15, had a cup of coffee and then walked toward the section of scaffold he had built the previous day and where he was to work on that day. There was a mortar mixer and a labor foreman there from Frank Miller & Sons Fireproofing as well as numerous other workers from the other trades. He stated he was supposed to start supplying the scaffold with mortar to get the bricklayers started at 8 o'clock.

When he arrived, he observed the scaffold had been completed as the foreman told him it would be. When he said completed he meant there was planking on the scaffold. No ladder was attached to the scaffolding, so he used the stairwell to get up to the second floor. From the second floor to the scaffold planking was a drop of about three feet. He went over to the side of the building and "more or less half stepped and half jumped to get down to the scaffolding." As he stepped down his foot caught on a two by four that had been put through the braces of a wheelbarrow for hoisting purposes, and he stumbled back toward the end of the scaffolding. He stated that when he hit the planking, "the plank and everything just went up. It just threw me over." The wheelbarrow flew over his head and landed in a large trash bin. He bounced off the side of the bin and landed on a two by four on the ground. The plank itself flipped up and then slid down and hit him.

He testified that George Erda, the superintendent of the Power Construction Company, emerged from the general contractor's shack and told one of the men to drive him to the hospital, where it was determined he had sustained extensive injuries.

George Erda testified he did not see the plaintiff fall and only found out about the accident a year or more later when he heard some employees discussing it on another job site. He stated he could not recall the condition of the scaffold on that day and did not know whether it had been completed or not.

Immediately prior to trial and after certain evidentiary matters had been discussed and ruled on by the court, the defendant withdrew its jury demand. Plaintiff's counsel objected and then requested the court permit him to pay the required fee so his client might have a jury trial. Counsel for the defendant then stated to the court: "I've viewed the matter at some detail with my principals and they are aware of the request and — particularly in view of the court's ruling with respect to the introduction, the utilization of the contract documents. I'm — I believe that we would prefer this — to have this case tried by your honor, as the trier of facts rather than by a jury of laymen. I think it's our right to withdraw our jury demand." The court allowed the withdrawal and denied the plaintiff's request for a jury.

The plaintiff first contends it was an abuse of discretion for the court to deny his request for a jury immediately prior to trial when the defendant withdrew its demand. Section 64 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 64) provides that a plaintiff must demand a trial by jury at the time the action is commenced or is deemed to have waived that right, but the court has discretion to allow a late jury demand pursuant to section 59 of the Civil Practice Act and Supreme Court Rule 183 (Ill. Rev. Stat. 1971, ch. 110A, par. 183). Relevant portions of those sections provide as follows:

Section 64 of the Civil Practice Act provides in part:

"(1) A plaintiff desirous of a trial by jury must file a demand therefor with the clerk at the time the action is commenced. A defendant desirous of a trial by jury must file a demand therefor not later than the filing of his answer. Otherwise, the party waives a jury."

Section 59 of the Civil Practice Act provides in relevant part:

"On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any ...

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