APPEAL from the Circuit Court of Cook County; the Hon.
ARCHIBALD J. CAREY, JR., Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
This is a negligence action to recover for personal injuries suffered by plaintiff, James D. Rone, at a sewer construction site in Hobart, Indiana.
Plaintiff appeals from a jury verdict entered in favor of defendant Boncar Construction Company on count II. Plaintiff also appeals from an order before trial striking count I of the complaint which alleged a violation by defendant of the Illinois Structural Work Act.
The basic facts of this case are undisputed. Plaintiff James D. Rone (Rone) was injured in an accident at a sewer project in Hobart, Indiana. The installation of the sanitary sewer was contracted for with the City of Hobart by a joint venture consisting of defendant Boncar Construction Company (Boncar) and Dan Raymond Construction Company (Raymond). Both companies are Illinois corporations having the same officers and sharing the same offices.
On May 6, 1970, the date of the accident, plaintiff was employed by Raymond as a line foreman. The duties of the line foreman included installation of a sewer pipe in a trench dug by a machine called a back hoe. Rone was in charge of six laborers and set general objectives and directions for laying the sewer pipe, but did not have any duty or control over the operation of the back hoe which was operated by Robert Crank, who testified that at that time he was an employee of Boncar.
On the date of the accident it was necessary to move a metal box, measuring about 10 feet by 20 feet by 6 feet and weighing about six to eight tons, about 35 feet from the trench down the alley where the sewer pipe was being laid. The box had been used for the safety of the men who work inside the box at the bottom of the trench, but was not needed that day because the ground was firm and the trench was shallow. The metal box was attached to the bucket of the back hoe (or crane) by means of cables and hooks. The back hoe operator then moved the unit backwards away from the trench. Plaintiff walked along side the back hoe directing Crank since Crank was unable to see the metal box being pulled behind the machine. As the back hoe progressed backwards it was necessary for plaintiff to signal Crank to stop because the tallest part of the hoe, the gantry, could not clear under a telephone wire crossing the alley.
When Crank idled the unit plaintiff explained the clearance problem and told him that he would climb onto the gantry and hold up the telephone wires. He then climbed on to the gantry above the cab and lifted the wires while Crank moved the back hoe about six or eight feet passing the gantry under the wire, and then stopped.
As plaintiff was attempting to get down from the gantry he was out of the vision of the operator holding on to one of the cables to steady himself. The metal cables extend from a wheel inside the back hoe over the gantry through a sheave or cable guide out to the elbow of the hoe or bucket and back through the sheave. The cables are used to control the digging operation of the hoe. As he held onto the cable the cable moved carrying his right hand into the sheave and severing all his fingers on that hand. In an attempt to extricate himself plaintiff lost two fingers on the left hand.
Crank, the back hoe operator, testified that in order for the cable to move the operator would have to activate a certain hand lever or release the brake. He testified that he could have let up on the brake at the time plaintiff was injured allowing the weight of the boom to cause the cable to move but he definitely did not move the hand lever.
Crank testified that on the day of the accident there was no system of communication signals being used between the plaintiff and the operator.
Plaintiff filed a three count complaint. Count I alleges that defendant Boncar, its agents, servants and employees, violated provisions of the Illinois Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) by wilfully failing to provide and maintain a complete and adequate system of communications between the operator and employees which proximately resulted in plaintiff's injuries.
In count II plaintiff alleges that defendant was negligent in that it failed to comply with a duty to have an adequate system of communication imposed by the Indiana Structural Work Act, commonly referred to as the Indiana Dangerous Occupation Act (5 Ind. Ann. Stat. § 20-304 (Burns) which provides:
"It is hereby made the duty of all owners, contractors, subcontractors, corporations, agents or persons whatsoever engaged * * * in the erection, repair or operation or management of any machinery, mechanism, or contrivance * * * to see and require * * * that all hoists, machinery or mechanism operated other than by hand power, are, when necessary for the safety of persons, employed in or about the same, or for the safety of the general public, provided with a system of communication by means of signals or otherwise, so that, at all times, there may be prompt and efficient communications between the employees and other persons and the operator of the motive power * * *."
Plaintiff further alleges that the violation of the above quoted statute proximately caused the ...