APPEAL from the Circuit Court of Cook County; the Hon.
REGINALD J. HOLZER, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 24, 1978.
In proceedings brought under the provisions of the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.) a directed verdict was entered against defendant Cunningham Brothers, Inc. (Cunningham), and the jury found against the other defendant, The Bassick Company, a Division of Stewart-Warner Corporation (Bassick) and awarded damages to each plaintiff against both defendants.
Bassick was the owner of the premises and Cunningham the general contractor for the work being performed. Cunningham filed a third-party action for indemnification against plaintiffs' employer, Mississippi Valley Erection Company of Illinois (Mississippi), which was tried with plaintiffs' action, and the jury found in favor of Mississippi. Cunningham, however, has appealed only from the judgment in the third-party action in favor of Mississippi and presents the following issues for review: (1) whether its third-party action was prejudiced by the directed verdict against it in the original action of plaintiffs and by the refusal of the court to give its Instruction 7; and (2) whether the verdict in the third-party action was against the manifest weight of the evidence. Cunningham has not appealed from the judgment entered against it in favor of plaintiffs.
Cunningham contracted to build two additions to the Bassick plant and subcontracted the erection of required steel structural work to Mississippi. During the course of construction, three vertical steel columns had been set in place by Mississippi with beams spanning the distance between them. Plaintiffs, Mississippi iron workers, were on the beams preparing to connect them to columns and, when it was found that the center column was a half-inch out of plumb in an easterly direction, Mississippi used guy wires with a ratchet device called a come-along to pull the column into plumb. In doing so, they over-compensated and pulled the top of the column three-quarters of an inch out of plumb to the west. No come-along had been set up to pull the column back to the east, and Mississippi decided to use the boom of a 60-foot crane to push the column into proper position. After achieving plumb, the iron workers attempted to maintain this position by tightening the securing nuts at the base of the column and by welding the bar joist to the columns. The securing nuts were tightened, but when the boom was pulled away the beam snapped back to the west, and the southern column toppled to the east shearing off the beam on which plaintiffs stood. They were injured when thrown to the ground.
It appears that in accordance with Cunningham's plans and specifications for steel erection, a concrete footing or pier was constructed as a foundation for each steel column and two anchor bolts were set in each footing. One bolt was positioned toward the eastern edge of the form and the other toward the western edge, and when cement was poured into the form both bolts protruded vertically from the surface of the concrete pier. Originally, grout (cement mixed with sand and water) was to have been poured between the upper surface of each pier and a steel setting plate containing two holes which allowed for the protrusion of the anchor bolts. Grout would have bonded the setting plate to the pier and provided support over the entire surface for the rest of the structure.
To avoid delay, Cunningham ordered Mississippi to erect the vertical steel columns without grouting and, to compensate, the iron workers used a stack of washers encircling each anchor bolt as a base on which the setting plates were balanced and they then shimmied the open spaces with wooden material found around the jobsite. Attached to the bottom of each steel column was a base plate with the same dimensions and configuration as the setting plate. These plates were to be joined by fastening a securing nut downward on each anchor bolt until it fit tightly against the base plate. In compliance with Cunningham's directions, the anchor bolts were set to a higher elevation than designated by the plans and, because the bolts did not reach the base plate, the securing nuts could not be tightened. To overcome this problem, Mississippi sleeved the anchor bolts with pipe and each securing nut was screwed down to the upper edge of the length of pipe rather than the base plate.
Clinton Warren, who was in charge of the project for Cunningham, testified that it (as general contractor) was responsible for the progress of the work, the means, methods and techniques employed in achieving such progress, and the safety of the workers, but that it relied on the steel erection subcontractor for the bracing and plumbing of columns. Warren testified that to avoid delay, he decided not to grout. He knew, however, that washers were being used to compensate for the lack of grout, that the anchor bolts were higher than designated, that pipe sleeves were being used to compensate for the excess in height, and that iron workers would be on the beams during a dangerous stage of construction. Warren also testified that the absence of grouting and the length of the anchor bolts was not caused by nor were they the responsibility of the iron workers and that he had acquiesced in the means which the Mississippi crew had employed to overcome these conditions, except that he was unaware that a boom crane was being used to plumb a column a practice he would have stopped had he known of it. In his opinion, the southern column would not have fallen had Mississippi used heavier bracing; i.e., more guy wires and steel rather than wooden shimming.
After the incident in question, Cunningham provided steel shimming to be used between the concrete footings and the setting plates and Mississippi, at its own expense, erected the fallen column.
Harry I. Scoggin, plaintiffs' architectural and structural engineering expert, testified that a hinge effect was created when the middle column, which was connected to the southern column by a beam, was moved. Although he and other witnesses opined that the use of a boom crane to plumb a column was not a good construction practice, Scoggin viewed its use here as insignificant because, in his opinion, the failure of the southern column was primarily due to the lack of grouting under the setting plate to resist overturning forces. It was his further opinion that the toppling of the column was secondarily caused by the use of thin-walled conduit to provide a sleeve between the base plate and the securing nut and by the absence of heavier bracing to support the column's top-heavy construction. Scoggin considered the pipe sleeve as the weakest link in the column's construction which, combined with the lack of grout, greatly reduced the amount of lateral force needed to topple it.
To the contrary, Jack R. Janney, Cunningham's expert in architectural and structural engineering, testified that whether the southern column had been grouted or not made no difference in its ability to withstand overturning forces in an easterly or westerly direction. Although he did not express an opinion as to the cause of the incident in question, he testified that the absence of grouting could not have been a cause where the securing nuts are tightened down to the base plate.
At the close of all the evidence, after the trial court directed the verdict in favor of plaintiffs and against Cunningham, an instruction concerning this direction was tendered by plaintiffs, in pertinent part as follows:
"You are instructed to find for the plaintiffs and against the defendant, Cunningham Brothers, Inc., on the issue of liability and to determine as to that defendant the issue of damages only."
Cunningham noted that this instruction clarified the situation for the jury and, as to its third-party action, tendered the following given ...