Appeal from the Circuit Court of Cook County; the Hon. Philip
A. Fleischman, Judge, presiding.
PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:
Plaintiffs, George Politakis, Chris Tsahas and Tasso Baris, brought this suit against defendant, Inland Steel Company, seeking compensation for the personal injuries they sustained on March 23, 1976, when the scaffold on which they were painting collapsed at defendant's mill in East Chicago, Indiana. Following a jury trial resulting in a verdict for defendant, plaintiffs raise these issues on appeal: (1) whether the trial court erred when it refused to give to the jury their instruction on res ipsa loquitur; (2) whether it was error for defense counsel to imply in closing argument that plaintiffs were negligent and caused the accident; and (3) whether it was error for defense counsel to state in closing argument that the incident was a pure accident.
The incident occurred in defendant's building which is used to store large coils of steel and in which were located two cranes, identified as No. 5 and No. 6. Crane No. 6, 32 feet wide and 100 feet long, travels the length of the building in a north-south direction. It consists of an operator's cab and a trolley, which runs in an east-west direction and from which a block and hook hang. A six-ton magnet, measuring 15 1/8 inches high and 66 inches wide, can be hung from the hook.
Plaintiffs were employed as painters by Pangere & Logan, who had contracted to paint defendant's equipment at the described location. On March 22, 1976, between 3 and 6 p.m., plaintiffs commenced erecting the scaffold to be used while painting crane No. 6. All of the equipment that was used in the scaffolding was supplied by Pangere & Logan. Pangere employees selected the method of erecting it and performed the work themselves.
The scaffold, which was supported by three cables, was erected by attaching the north cable with a choker *fn1 to the west wall of the building. The center cable was tied to the east side of the building and fastened to the west side by means of a choker. The choker was wrapped by plaintiffs around a square piece of metal on the west side of the building behind the crane runway beam. The cable continued along the west wall, was attached again to the structure, and then ran across the floor to the east wall to become the third cable. Devices called "come-alongs" were used to tighten the tension on the cables. Two wooden planks, weighing 100 pounds each, were hoisted on the cables and were approximately 30-35 feet off the ground.
During the night shift, one of defendant's employees, Glendell Walls, used the No. 6 crane. He knew about plaintiffs' rigging and while operating the crane from the cab, he received instructions from foreman David Comstock. Comstock testified that he had been on crane No. 6 in order to see how much space there was between the cable, block and magnet. Walls testified that Comstock told him to be careful about plaintiffs' cables.
Following Comstock's directions, Walls moved the trolley 12 to 15 feet east and then lowered the magnet to the floor. The magnet was detached and the hoist raised back up. Comstock testified that at no time did the magnet, or anything else, make contact with the center cable. At 6 a.m., plaintiffs began working on the scaffolding again. Twenty minutes later, the center cable broke and the scaffolding collapsed, severely injuring plaintiffs.
Metallurgical engineers on behalf of plaintiffs and defendant testified regarding the possible causes of the break in the choker cable. The choker has six strands and each strand is made up of 37 wires. Defendant's expert, Norris Yonker, testified that the wire rope, when originally made, had a breaking strength of 3.2 tons and that its breaking strength is lowered when the rope is tightened or stretched. Yonker stated that a visual examination of the choker cable revealed severe corrosion of the internal wires, sharp bends at the fractured ends and wire down to a knife-edge. In his opinion, the failure to the cable was gradual and not instantaneous.
Plaintiffs' expert, Lyle Jacobs, testified that the place where the break occurred on the choker cable was flattened and that there was abrasion or wearing away of the wires. Jacobs stated that in his opinion, although corrosion existed, it was minimal and did not contribute to the failure of the choker. He also stated that the breaking strength of the choker when manufactured was between 5 and 5 3/4 tons and that he believed that the choker was serviceable prior to March 22, 1976.
The trial court did not allow plaintiffs' proffered instruction on the doctrine of res ipsa loquitur to be submitted to the jury. Upon the jury returning a verdict in favor of defendant, plaintiffs filed this appeal.
• 1 Plaintiffs' primary contention in this appeal is that the trial court erred in refusing to instruct the jury as to the principle of res ipsa loquitur. *fn2 The purpose of this doctrine is to allow proof of negligence by circumstantial evidence when the direct evidence of the cause of an accident is primarily within the knowledge and control of defendant. (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449, 207 N.E.2d 305.) To take advantage of the theory, a plaintiff must prove that he was injured: (1) in an occurrence which would not have occurred in the absence of negligence; (2) by an instrumentality or agency under the management or control of defendant; and (3) under circumstances which were not due to any voluntary act or negligence on the part of plaintiff. Whether the doctrine applies in a given case is a question of law which the trial court must in the first instance decide. It does not apply unless a duty of care is owed by defendant to plaintiff. (Spidle v. Steward (1980), 79 Ill.2d 1, 5, 402 N.E.2d 216.) It must be noted in this case that although the trial court was applying Indiana law, both parties agree that Indiana law does not materially differ from Illinois law on this subject.
It is apparent that the trial court's striking of defendant's affirmative defense of contributory negligence satisfies the third element needed for the instruction. As to the first requirement, defendant urges that this is not a case where the incident would not or could not have occurred in the absence of negligence. The trial court ruled that plaintiffs were not guilty of negligence and the jury, by its verdict, found that defendant was likewise not guilty of negligence. Defendant urges that this outcome lends credence to the theory which it argued at trial that it is possible no one was negligent, and that the cable simply parted because it was stretched over a girder edge. We need not address this argument because we base our affirmance of the trial court's ruling upon the inability of plaintiffs to prove the second element, which is control by defendant over the instrumentalities involved in the occurrence. Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449.
Plaintiffs' theory of recovery in this suit was that defendant was liable for their injuries because its employees caused the crane or its appurtenances to hit the center cable of the rigging, which resulted in the collapse of the scaffolding. Plaintiffs urge that the res ipsa inference of negligence is applicable to this situation because their rigging was in a safe condition when they left defendant's mill at 6 p.m., and they had no control over, nor knowledge of, defendant's acts which occurred between that time and the time they arrived the following morning. With ...