specially concurring:
I concur with Mr. Justice Goldberg in his determination that trial errors require a new trial. The failure of the plaintiff to mention the ladder in his deposition, even though it might not constitute a direct contradiction, may be shown. People v. Bonham, 348 Ill. 575, 181 N.E. 422; Carroll v. Krause, 295 Ill.App. 552, 15 N.E.2d 323.
Count III, which was based on the ordinance, should not have been submitted to the jury. That Count alleged, in substance, that anyone who violated the specific sections of the ordinance or who did not comply with the provisions of the American Standard Safety Code ipso facto violated the Structural Work Act. I agree with Justice Goldberg’s reasoning and holding with respect to the ordinance, but I would make a further observation. In my opinion, chapter 76-1 (b) may not support even a negligence count. That subsection provides: “The provisions of the American Standard Safety Code for Building Construction of the. American Standard Association # * * shall be considered as accepted engineering practice with respect to safeguards during construction.” This subsection constitutes an unlawful delegation of legislative authority to the American Standard Association. (See Garces v. Department of Registration and Education, 118 Ill.App.2d 206, 254 N.E.2d 622.) While not necessary to my decision and, concededly, not raised in the trial court, I wish to make my views known on the question of delegation of power lest my silence be construed as a tacit recognition of its validity.
The dissenting opinion of Justice Adesko maintains that the claim that the statute is a nullity was never asserted by the defendants and was, therefore, waived. The opinion further states that the defendants’ only objection made at the conference went to the applicability, and not the invalidity, of the ordinance. At that conference, the trial judge stated that they had gone over the instructions for three hours, apparently without a court reporter, and that he would give each party the right to make his objections for the record. He then said that he would give plaintiffs instruction 1, 2 and 3. The following ensued:
“Mr. French: With regards to plaintiff’s tendered Instruction number 3, the City of Chicago objects to it on the ground, first of all, that it’s an attempt to state two separate causes of action actually based upon the same statute, and on the further ground that to incorporate the ordinances is to go into a negligence type cause of action, which was dismissed preemptorily [sic] by the plaintiff # * *.
Mr. Valentine: On behalf of the Defendant O’Neil we wish also to object to plaintiff’s tendered Instruction number 3 and will adopt the argument as advanced by counsel for the City of Chicago * *
Both lawyers made the further objection that the evidence did not show the applicability of the ordinance. Further, the answer of O’Neil and the argument of Mr. French on the motion for directed verdict presented the issue in the trial court.
In the brief of O’Neil the following appeared at page 41:
“Despite the repeated objections of defense counsel, the trial judge permitted the plaintiff to plead, argue and submit to the jury a theory of liability which was totally unwarranted in the law. The hybrid theory raised — in effect a ‘City of Chicago Structural Work Act’ — represented clear error. It seriously prejudiced the defendants and requires a reversal of the cause.” (Emphasis added.)
The brief points out further, with appropriate references to the abstract, that all through the trial they had insisted that, though the ordinance might give rise to a cause of action for negligence, it could not be the basis of a Structural Work Act complaint. The brief says expressly: “But the City of Chicago could not and did not create a new right of action [under the Act].” (Emphasis added.) It thus appears to me that the question was indeed raised in the trial court, and, equally important, the briefs of all parties have put the issue clearly before us. Significantly, the plaintiff does not claim, as does the dissent, that the defendants waived the point by not raising it in the trial court. I must also disagree with the assertion that we have declared an ordinance unconstitutional, “sua sponte.” When O’Neil argued in its brief that the City of Chicago could not pass an ordinance expanding the Structural Work Act, that was tantamount, so far as I am concerned, to saying that the City had exceeded its authority and that, therefore, it had usurped power vested in the legislature.
The dissent states: “It was not only proper but mandatory for the trial court to permit plaintiff’s pursuit of the local remedy on a par with the State statute ** * (Emphasis added.) First, there is no objection on the part of the defendants to the plaintiffs pursuit of a local remedy, but on a negligence basis; second, it seems that the plaintiff himself took the position that the ordinance was more than “on a par” with tire statute when he argued to the jury that the City adopted the same law “and put a few more teeth in it.”
I must further disagree with the dissenting opinion that we have departed from the holding in Kaspar v. Clinton-Jackson; or that the Kaspar court distinguished and approved the negligence action as being separate from the Act and the ordinance; and that the Kaspar court, if it had felt that the ordinance exceeded the bounds of the statute or could only be pursued as a negligence action, would have said so. The reason I disagree is that the point was never presented to the Kaspar court. The only points raised in the Kaspar appeal were a refusal to allow an exhibit to go to the jury; a refusal to give a special interrogatory; and excessive damages.
I fail to see how Nelson v. Union Wire Rope Corp., cited in the dissent, is authority for the proposition that a party may read ordinances to the jury. As the language of the opinion quoted in the dissent indicates, the court simply held that the point had been waived by failure to raise it in the post-trial motion.
Nor do I see the applicability of Logue v. Williams to the dissent’s holding that a “basic rule of impeachment prohibits allusion to a statement * * * where a party admits that his opinion has been altered by some circumstance. At that juncture no further inquiiy can be made.” (Emphasis added.) The rule of Logue v. Williams provides that, if the witness admits having made the impeaching statement, the adverse party need not go further. That is hardly the situation in this case where the defendant was not even permitted to ask the question of the plaintiff. For these reasons I adhere to my view that a new trial is required.
I further agree with Mr. Justice Goldberg that the trial court properly excluded the hospital report because a proper foundation was lacking; that plaintiff’s instructions number 4, 5, and 9 and Court’s instruction number 1 were properly given; that the evidence was sufficient to support a finding that O’Neil was in charge of the work; and that the agreement bound O’Neil to indemnify the City of Chicago. While some, but not all, of the remarks of the plaintiff’s attorney in his final argument were better left unsaid, I do not believe that his argument constituted reversible error.
I would, however, go further and hold that the evidence fails to show the applicability of the Structural Work Act or that O’Neil or the City were guilty of a wilful violation of the Act.
Two basic principles must be noted: the plaintiff has the burden of proof; and he is bound by the allegations of his complaint.
The plaintiff testified that, after he went around the first wall, he turned on his flashlight because the electric lights were not working. He was walking along with his light shining on the floor, checking from time to time for debris and material lying on the floor. When something hit his arm, he dropped the flashlight, which went out, and he started searching for it. Previously, he had noticed the debris the City Inspector had told him about. There was a little spillage of concrete. As he was going around the different bays, he noticed there was “red wood, that was going to be installed and iron angles, channels, that were going to be installed in [the] machinery” on the sides. After looking at hospital records, his memory was refreshed as to how he fell in the maze:
“A. I was searching — feeling with my feet and bent over with my hands trying to find my flashlight, and I tripped and losing my — trying to regain my balance, I felt the edge of a ladder and rungs, and it slid along a little bit with me. And I remember falling into space. And that’s all that I remember until I come out of the hole.”
Later in his testimony, he said that he had previously sent two men down to the location to clean up some debris. He explained that, when the forms are taken off by his employer, some concrete and small pieces of lumber that were built around the forms to brace them fall off. When he was there four days before the accident, he saw a barricade at the point where he fell. This was a long piece of 2 x 4 running diagonally from the floor about three feet up and braced or rested against another short piece of 2 x 4, which was braced against the wall. On cross-examination he testified:
“A. My flashlight, I dropped it, and I bent over — I heard the light fall. It went out and it sounded like it was rolling just ahead of me and I bent over, trying to feel for the light and scraping with my feet at the same time, feeling for it, and I took two, three steps, maybe four, and I tripped over a ladder, and in trying to regain my balance, the ladder shifted with me and I could feel the rungs as my hands swung along and then I fell into space.”
John Ryan testified for the plaintiff that at the time of the occurrence he was a co-employee of the plaintiff. The day after the accident he and another man went to the hole where the plaintiff had been injured. He then said:
“A. Well, we shined the light down there and saw a hard hat and some other belongings, and I climbed down there on a ladder.
Q. Where did you find this ladder?
A. I don’t remember if it was in the hole already or if I put it down there. I was rather anxious because I had found some things.”
From this evidence Justice Goldberg concludes “that it is difficult to determine from the record if the ladder was lying on the concrete floor or was in place between the intermediate level and the sub-basement, protruding above the floor of the former,” and I agree. However, it is the position of the plaintiff that the ladder was placed and used in the hole where he fell and that the “end of the ladder protruded from the opening into the darkened baffle area.” He is in the best position to interpret the meaning of his own testimony. In addition, since only ladders of less than 10 feet were used by Link Belt, it is difficult to see why anyone would place a ladder 18 feet long on that floor. Since the hole was approximately 10 feet by 10 feet, maneuverability of an 18 foot ladder would be relatively difficult. We must under the circumstances accept the plaintiff’s interpretation.
I advert to the evidence and the contentions of the plaintiff because Justice Goldberg finds “no problem in concluding that the concrete floor from which the plaintiff fell was a scaffold or support within the requirements of the Act.” Whether the concrete floor was or was not a scaffold is debatable, but immaterial, because the plaintiff does not so allege in his complaint. He does not claim that the concrete floor was a defective scaffold. If that were one of the bases of his claim of a wilful violation, it would not matter under Schultz v. Erickson, Karris v. Goldwin, Spiezio v. Commonwealth Edison or Louis v. Barenfanger, cited by Justice Goldberg, whether it was a ladder, debris, or anything else that caused him to trip and fall. Consequently, I do not see the applicability of these cases to the evidence and pleadings here. His claim, rather, is based first on the assertion in paragraphs 5 (a) and (b) of Count II:
“(a) [The defendant] [c]aused, permitted or failed to discover a ladder that was improperly placed or situated in an area where workmen might have occasion to be walking by, at or near there; [emphasis added]
(b) Caused, permitted or failed to discover a ladder that was improperly placed adjacent, near or in an unbarricated [sic] hole;”
The pleadings, the argument of plaintiff’s counsel at the trial and in his brief, and the statement of counsel at oral argument make it clear that, but for the fact that a ladder was involved in some way, this claim would be for negligence and not under the Structural Work Act. To illustrate, this case had been filed under common law negligence and had remained so for five years. It was after the plaintiff had refreshed his recollection from the hospital record before trial and remembered that a ladder was involved that the complaint was amended. Parenthetically, I note the hospital record shows: “* * * Patient states while working he fell down from sladder [sic] losing consciousness for a few hours. * * *” (Emphasis added.)
Section 60 provides that all “ladders * * * shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.” (Emphasis added.) The plaintiff concedes that this case does not involve the life and limb of any person “employed or engaged” on the ladder. The question then becomes the interpretation of “passing under or by,” not, as the complaint alleges, “walking * * * at or near.” The plaintiff refers to the title of the Act itself and Bennett v. Musgrave, 130 Ill.App.2d 891, 266 N.E.2d 128, as authority for the proposition that the Act provides for the protection and safety of persons “in and about” the construction. That language does appear in the title and the case cited, but the term “in and about” is an all-inclusive one, embracing those employed or engaged on the device as well as those passing under or by it. In the Bennett case, the plaintiff was injured by a wrench which was dropped from a scaffold above him. The only reasonable interpretation of the Act, with full recognition that it is to be construed liberally, requires that the ladder be so placed and operated as to prevent material, tools or the ladder itself from falling on any persons passing under or by it, including persons not involved in the constraction. In every case our research has disclosed involving recovery under the Act, either the person on the device was injured, or a person walking under or by it was struck by some falling object. (E.g., Bennett v. Musgrave, 130 Ill.App.2d 891, 266 N.E.2d 128; Brackett v. James Black Masonry & Contracting Co., 326 Mo. 387, 32 S.W.2d 288; Koepp v. National Enameling and Stamping Co., 151 Wis. 302, 139 N.W. 179; Skinner v. United States, 209 F.Supp. 424.) In every other case involving ladders, the claim was for common law negligence. (E.g., Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620; Barnard v. Trenton-New Brunswick Theatres Co., 32 N.J. Super. 551, 108 A.2d 873.) In other words, to invoke the coverage of the Act, it must be shown that the injury was caused when the ladder was used as a ladder. If the position of the plaintiff is correct, then the Act is applicable, assuming ongoing construction, regardless of where the injury occurs as long as one of the devices named in the statute is involved. Thus, if a ladder (or hoist, crane, stay, etc.) were placed against the building outside on the ground, and the plaintiff tripped over any of them and injured himself, the Act would be applicable. As was said in another setting in Vykruta v. Thomas Hoist Co., Inc., 75 Ill.App.2d 291, 302, 221 N.E.2d 99: “Such an interpretation of the statute places too much strain on its wording.”
I must also conclude that the plaintiff has failed to prove that O’Neil or the City wilfully violated section 60. In Lavery v. Ridgeway House, Inc., 117 Ill.App.2d 176, 254 N.E.2d 117, the plaintiff was a truck driver delivering cement to a construction site. While riding on a material hoist it began to shake. In an attempt to balance himself his hand was injured when it was caught between the hoist cable and an uncovered pulley. A material hoist is open, and a passenger hoist is closed by a cage. The appellate court pointed out that the hoist was not defective or in a dangerous condition and that it was designed to carry material and not personnel. (See also Vykruta v. Thomas Hoist Co., Inc., 75 Ill.App.2d 291, 303, 221 N.E.2d 99.) In this case, there is no showing that the ladder was defective or dangerous, or that it was improperly placed or situated. All that the plaintiff has shown is that the ladder was there, and nothing else. Consequently, he has failed to prove the allegations of his complaint that section 60 had been wilfully violated.
The plaintiff alleges that the defendants violated the Act in that they:
“(c) Caused, permitted or failed to require contractors or subcontractors to furnish or provide adequate lighting to enable workmen to discover a ladder improperly placed or situated next to or in an unbarricated [sic] hole;”
The plaintiff refers to no section of the Act nor any case which would support his contention that failure to provide adequate lighting constitutes a wilful violation of the Act. The provisions of the Act are not to be equated with the obligation to provide a safe place to work. (Parizon v. Granite City Steel Co., 71 Ill.App.2d 53, 218 N.E.2d 27.) Assuming, solely for the sake of the plaintiff’s argument, that the failure to provide adequate lighting could be the basis of recovery under the Statute, I must conclude that the evidence fails to disclose a wilful violation by the defendants. O’Neil had removed its lighting in March and was not in the area at the time of the accident. The plaintiff”s employer had put in its own lights, and its men were working shortly before and on the morning of the accident. The plaintiff’s duties included checking the lights. It is not reasonable to say that O’Neil or the City should be charged with the knowledge that the lights were not working when the plaintiff himself did not know it. Lavery v. Ridgeway House, Inc., 117 Ill.App.2d 176, 188, 254 N.E.2d 117; Vykruta v. Thomas Hoist Co., 75 Ill.App.2d 291, 303, 221 N.E.2d 99.
The last allegation of paragraph 5 is as follows:
“(d) [The defendants] failed to erect, supply or provide a safe, suitable and proper barricade over an opening or shaft that had been used to hoist material.”
This allegation charges a violation of section 66 of the Act, which basically provides that, if elevating machines or hoisting apparatus are used in a building during the course of construction for the purpose of lifting materials to be used in such construction, then the contractors or owners shall cause the opening to be enclosed or fenced on all sides by a substantial barrier or railing at least eight feet in height.
I agree with Justice Goldberg that McGinnis v. Cosmopolitan National Bank and Trust Co., 114 Ill.App.2d 113, 252 N.E.2d 56 is not applicable here. In that case a hole in the floor had been cut for the purpose of installing a dumbwaiter or elevating hoist. The plaintiff walked over to the hole, “placed her hand on a protective wooden board about three feet high, leaned over [the] barrier and fell into the basement * * The dumbwaiter was being put in the building to enable the employer to move certain material from the basement to the first floor more easily. The appellate court, in holding that section 66 was not applicable, said: “In the case at bar, the hoist or dumbwaiter was not being used for the purpose of elevating any materials in the construction or alteration of the building, but was to be the structure itself.” The court distinguished Claffy v. Chicago Dock and Canal Co., 249 Ill. 210, 94 N.E. 551: “In that case, there was no dispute but that the plaintiff fell into a shaft which was used for a hoisting machine admittedly then being used in the construction or alteration of the building.” (Emphasis added.)
In this case, if the accident had occurred on the previous Thursday when, tiie witnesses testified, the area was being used as a hoistway, the plaintiff”s argument that there was an obligation to provide or require barricades might be tenable. Justice Goldberg contends that the evidence is conflicting as to precisely when the hoisting of materials through the hole was completed. There is no conflict, however, in the testimony that establishes that it was completed before the day plaintiff was injured. The undisputed evidence, including the testimony of the plaintiff’s witnesses, leads to no other conclusion but that the areaway into which the plaintiff fell was no longer being used as a hoistway on the day of the accident. O’Neil had closed the hole at roof level, as the plans required. Link Belt had completed its work in the area, save cleaning up. The area was to be permanently under water; consequently, the barricades had been removed. Ryan, the plaintiff’s witness, said that the hole that had been used for hoisting the previous week was “holed up” and was not used for hoisting on the day the plaintiff was injured.
Under this evidence, I conclude that the duty to barricade no longer existed. The nature of the structure required that the barricades be removed; all construction work at this particular site, including hoisting, had ceased. If, as the plaintiff seems to contend, once a hoistway always a hoistway, the barricades could never be removed without subjecting the party in charge of the work to liability. For example, under this theory, if the men removing the barricades fell into the unbarricaded hole, liability would attach. (See Korfanta v. Vanderbilt Ave. Realty Co., 193 App.Div. 763, 184 N.Y.S. 503.) In the Korfanta case, after most of the construction had been completed, the plaintiff returned to perform some minor repairs and fell down an unguarded elevator shaft. The Court held that the duty to guard the shaft under the evidence no longer existed.
Justice Goldberg further contends that, even if O’Neil had actually suspended or completed its hoisting activities as well as its other work in the particular area in question before the occurrence, since they were (or could be found to be) in charge of the work, they may still be held liable under the Act. With the proposition that O’Neil would not be excused simply because he had completed his hoisting activities, I am in complete agreement, but the plaintiff must prove that someone was using the hole as a hoistway on the day in question, and I submit he has not. The case of Pantaleo v. Gamm, 106 Ill.App.2d 116, 245 N.E.2d 618, cited by Justice Goldberg, is factually inapposite. In that case, the general contractor left a material hoist on the jobsite; there were no ladders, scaffolds, or personnel hoists on the site. The material hoist was the only means available to get from the ground to the roof, thus requiring its use. The plaintiff, while standing on some material piled on the hoist, was injured when the hoist began to shake and his hand was caught in the cable pulley. It is apparent that the proscribed condition existed at the time of the injury, i.e., the presence and required use of a defective hoist. In this case the proscribed condition, i.e., an unbarricaded opening being used as a hoistway, did not exist at the time of the injury.
For these reasons I conclude that the plaintiff has failed to prove the applicability of the Structural Work Act or that the defendants were guilty of any wilful violation of the Act. I would, therefore, reverse the judgment.