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Blake v. Tri-state Crane Service

OPINION FILED MAY 20, 1983.

EDWARD J. BLAKE, PLAINTIFF-APPELLANT,

v.

TRI-STATE CRANE SERVICE, INC., ET AL., DEFENDANTS AND THIRD-PARTY PLAINTIFFS-APPELLEES — (SPRAGUE IRON WORKS, THIRD-PARTY DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.

JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Plaintiff Edward J. Blake filed suit under the Structural Work Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) to recover for injuries sustained at a construction site. The court entered judgment on a directed verdict in favor of defendant Enger-Vavra, Inc., and entered judgment on a jury verdict in favor of defendant Tri-State Crane Service, Inc. (Tri-State). Upon denial of plaintiff's post-trial motion, plaintiff appealed. The issues are whether: (1) errors as to instructions were waived; (2) the court erred in refusing plaintiff's tendered instructions; (3) the jury verdict in favor of the subcontractor Tri-State was contrary to the manifest weight of the evidence; and (4) the court erred in directing a verdict in favor of the general contractor, Enger-Vavra, Inc. We affirm.

Defendant Enger-Vavra, Inc., was the general contractor for the construction of a structural steel building for use as a racquetball court. Defendant Tri-State leased a crane and crane operator to Sprague Iron Works, Inc. (Sprague), a subcontractor. Sprague employed plaintiff and four other ironworkers on the project. *fn1

Plaintiff sustained injuries while working on the construction site as a "connector." A connector sets joists into proper position before they are permanently fastened in place. Joists are parallel horizontal bars of iron extending from wall to beam to support the boards of the floor or ceiling of a building. The joists are hoisted by a crane which utilizes cables attached to a movable boom. At the end of the cable there is a large weighted ball called the "headache ball" which has a hook at the bottom. Attached to the cable above the headache ball is another cable, a "choker," which has a loop at the free end. To place a joist, first the choker is slipped around the joist, then the loop at the end of the choker is placed on the hook at the bottom of the headache ball. The crane then lifts the joist to the connectors who set it in place. Once the joist is in place the crane operator maneuvers the headache ball in such a way that the looped end of the choker slides off the hook at the end of the headache ball, disconnecting the joist from the crane. The crane then pulls the cable and the ball up and away.

The crane operator moves the crane and joist as directed by hand signals from the connectors. When the connector's position allows him to see the crane operator, the connector gives hand signals regarding the desired movement of the crane directly to the crane operator. When the connector and the crane operator are not visible to each other, or "in the blind," the connector gives the signals to the signalman who relays them to the crane operator.

At the time of the injury, plaintiff and his partner, Gregory Hudella, were working as connectors. They had placed two joists and were working on the third. Hudella was on a ladder against an inside wall of the building under construction. The wall contained holes or pockets into which he placed one end of each joist. Directly across from Hudella, plaintiff was standing on the beam upon which he was setting the other end of each joist. After Hudella placed his end of the third joist into the pocket, plaintiff placed his end in the proper position on the beam and stood with his right foot on the joist in order to hold it in place. At that time, the crane pulled the joist up in the air causing plaintiff to be thrown off the beam. He fell to the ground, sustaining injuries.

Gregory Hudella, plaintiff's connector-partner on the day in question, testified that from his position on the ladder he was unable to see the crane operator; he himself had earlier stood on the beam where plaintiff was standing just prior to the injury and, from that position, he had been able to see the crane operator; plaintiff was giving signals directly to the crane operator; after the third bar joist was set into position with one end in the pocket and the other end on the beam, plaintiff was standing on the beam facing the crane operator and had one foot on top of the bar joist to hold it in place; plaintiff then gave the hand signals for "crane down a little bit" and "up easy," which means move up very slowly, in order to disconnect the crane from the joist; after the "up easy" signal the joist went up in the air quickly and plaintiff was thrown approximately 20 feet into the air before he fell to the ground; he never saw a signal given for the "up and out fast" movement that the joist actually sustained; this was plaintiff's first day on this particular construction site; and the signals used were the signals accepted in the trade.

George Hominick, an ironworker employed by Sprague, testified that he was the signalman on the day of plaintiff's injury; as signalman he relayed the signals from the connectors to the crane operator when they were working in the blind; the crane operator does not give but only receives signals; just prior to being thrown off the beam plaintiff was giving signals directly to the crane operator; plaintiff gave the "easy up" signal; after Hominick saw the "easy up" signal given the joist went up in the air very quickly and plaintiff was thrown into the air before falling to the ground; and the use of a signalman and the hand signals used were common and accepted within the trade.

Plaintiff testified that after he and the other connector had positioned the third joist he was standing on the beam with his foot on the joist to hold it in position; at that time he had a clear view of the crane operator but the crane operator was not looking at him; he held the "easy up" signal so the crane operator would see it; the crane operator turned toward him and made a movement following which he was thrown up to the height of the beams which formed the next level of the building before falling to the ground; he was familiar with the job of a connector; and he did not remember whether he had had any discussion with the crane operator before starting the job that day.

Eugene Stromberg testified that he was the foreman and one of the crew of five ironworkers employed by Sprague; he supervised and directed the ironworkers and assigned them to various jobs; the crane operator decided on the positioning of the crane and directed the ironworkers in setting it up; the crane operator stays in the cab of the crane and waits for the signals to be given to him; and he himself had pointed out Hominick to the crane operator as the man who would be giving signals that day.

Jack Greinke testified that he was employed by the subcontractor Tri-State and was the crane operator on the construction site; at the time of the accident he was working in the blind and could not see the plaintiff; because he was in the blind he was at all times receiving signals from the signalman, the only man he could see, and not the connectors; when working in the blind the signalman is the "boss"; after the third joist had been placed, immediately before the injury, the signalman gave the "cable up" signal; he started to raise the cable but stopped upon receiving the signal to do so; when he operates in the blind he always moves the crane slowly; if he feels appropriate safety measures are not being taken he will refuse to do a job; and if he receives a signal he knows is unsafe he will refuse to follow it.

At the conclusion of plaintiff's case, the court granted the motion of Enger-Vavra, Inc., for a directed verdict and entered judgment thereon. In response to a special interrogatory, the jury found that defendant Tri-State's conduct was not "the primary and significant cause" of plaintiff's injury and returned a verdict for Tri-State. Judgment was entered on the jury verdict. Plaintiff appeals the judgments and the denial of his post-trial motion.

OPINION

• 1 We first consider the argument raised in defendant Tri-State's brief that plaintiff's post-trial motion was insufficiently specific and, therefore, any error as to the instructions has been waived. Under section 2-1202(b) of the Code of Civil Procedure, a post-trial motion "must contain the points relied upon, particularly specifying the grounds in support thereof * * *." (Ill. Rev. Stat. 1981, ch. 110, par. 2-1202(b).) Supreme Court Rule 366(b)(2)(iii) provides that "[a] party may not urge as error on review of the ruling on his post-trial motion any point, ground, or relief not specified in the motion." (87 Ill.2d R. 366(b)(2)(iii).) Any claimed error in the instructions cannot be reviewed upon ...


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