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Long v. Bucyrus-erie Co.

OPINION FILED FEBRUARY 15, 1983.

RICHARD LONG, PLAINTIFF,

v.

BUCYRUS-ERIE COMPANY, DEFENDANT. — (CONSOLIDATION COAL COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT

v.

F & E ERECTION COMPANY, THIRD-PARTY DEFENDANT-APPELLEE.)



Appeal from the Circuit Court of Williamson County; the Hon. Robert Howerton, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Plaintiff Richard Long brought a negligence action against Consolidated Coal Company (Consol) to recover for injuries sustained while working on the construction of a dragline on a mine site owned by Consol. Consol filed a third-party action for indemnity against Long's employer, F & E Erection Company (F & E), which had contracted with Consol to erect the dragline in question.

The jury found for plaintiff Long on the negligence claim, and Consol takes no appeal from the judgment entered against it on that verdict. The jury also returned a general verdict in favor of F & E on Consol's indemnity claim and answered a special interrogatory as to whether Consol was "free from major fault in causing Richard Long's injuries" in the negative. Consol appeals from the judgment in the third-party action, contending that the trial court should have entered judgment in its favor notwithstanding the jury's verdict. Consol also contends that the trial court erred in dismissing its claim against F & E for contractual indemnity. We affirm.

Plaintiff Long was injured on January 24, 1977, when he fell off the base or tub of a dragline being erected on Consol's Burning Star Mine No. 5 near DeSoto, Illinois. Long was a welder employed by F & E. He worked the second shift, 4 p.m. to midnight. At the time of the accident he was removing snow and ice from the tub in order to uncover a seam to be welded.

A tent-like structure of metal and canvas had been erected over the tub to protect the working parts of the dragline from the weather and to provide covering for the F & E workmen on the tub. The structure did not cover the entire tub but left part of it exposed around the outer perimeter. Along the edge of the tub were tie wires angling in and upward to hold the canvas roof taut. Cloth rags had been attached to the wires to alert those walking in the area of the tie wires. Some of the flags were missing, however, and the tie wires were difficult to see as the lighting was poor.

Long had been chipping ice and snow from the tub for about an hour when the accident occurred. He was facing outward away from the center of the tub. A tie wire, partially covered by snow and unflagged, was to his right. As Long stepped forward with his right foot, the buckle on his galosh caught the tie wire, and he fell forward. Long grabbed for a rope handrail which had been installed around the circumference of the tub, but the handrail was loose and sagging. Long fell to the snow below and suffered injuries.

Long brought suit against Consol, alleging that Consol exercised control over the construction of the dragline and that it was negligent in failing to provide plaintiff with a safe place to work. Consol in turn sued F & E for indemnity under a theory of active-passive negligence, contending that it was not actively involved in the construction of the dragline and should therefore be allowed to shift the burden of liability to F & E, the active tort-feasor.

It is undisputed that Consol owned both the dragline and the mine site upon which it was being erected. Construction of the dragline was done exclusively by F & E, and all the workers on the site were F & E employees. F & E also provided supervisory personnel, although both Consol and Bucyrus-Erie Company, from which Consol purchased the dragline, had men on the site to oversee the construction. An engineer from Bucyrus-Erie was present for purposes of quality control, while the Consol supervisor was to inspect the work and approve it for progress payments.

Under the terms of the contract between Consol and F & E, Consol had the right to terminate its contract with F & E upon seven days' notice. Consol could also fire the F & E job superintendent if he proved to be unsatisfactory to Consol. All F & E workers, however, were subject solely to the control and supervision of F & E. Further, while the works and materials were owned by Consol, they were under the care and custody of F & E. F & E had the obligation under the contract to keep the job site clean and in a safe working condition, to anticipate the hazards of inclement weather in protecting property and personnel, and to provide safety devices used on the job.

It was Consol's duty under the contract to provide F & E with copies of its safety policy for distribution to F & E employees. Consol had annual week-long safety meetings that F & E employees were required to attend. In addition, Consol supervisor Leonard West attended weekly safety meetings held on the job site for F & E employees. At these meetings West often gave safety orders to F & E personnel. On one occasion, for example, he ordered the grinding down and repainting of the handrails leading up to the tub of the dragline in order to prevent hand and finger cuts caused by the buildup of welds on the handrails. He also ordered that the welders restring their cables to avoid a safety violation resulting from tangled cables and insisted that the heavy equipment operators not run their machines without an alarm bell or a flagman present.

Consol brought Leonard West onto the job as supervisor in late 1976 after one of the two draglines F & E was to erect had been completed. Plaintiff Long testified that F & E had been running behind schedule and Consol had wanted West to represent it at the work site because he had the ability to make demands and get things done. Bucyrus-Erie's quality control man agreed that there had been problems between F & E and Consol as to how things were being done and that West made certain changes. According to plaintiff Long, West would go all over the job site telling the welders, millwrights and iron workers what to do. Sometimes West would give orders directly to the F & E employees and at other times he would give them orders through the F & E foremen.

Shortly after coming onto the job, West gave Jack Hockey, the F & E job superintendent, a list of things which Consol and West wanted F & E to do on the job site. One of these tasks was to cover the dragline's tub and revolving frame. Hockey testified that West had provided the list because F & E was planning to lay off some of its employees, and the list represented suggestions as to how to keep the men busy rather than lay them off. In any event, the tub was covered pursuant to West's request.

Plaintiff Long testified that one night during the second shift the tarp covering the tub began to tear because of the strong wind. Leonard West came into the area where some of the men were eating supper and told Jim Reynolds, the F & E foreman, to shut the job down in order to save the tarp. During the operation to save the tarp, West gave the orders, and the F & E men, including the foremen and supervisors, worked to tie down the tarp. West did not at that time or at any other time instruct the men to cover the whole tub, although he was aware that workers frequently had to go onto the uncovered part of the tub to remove ice and snow.

On the night Long was injured, he was instructed to go onto the tub to chip the ice and snow off it. The testimony was conflicting as to whether Consol, in the person of Leonard West, was involved in the decision ...


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