dissenting:
I respectfully dissent.
The majority predicates its decision on its belief that repairing the crane was not a construction activity covered by the Structural Work Act. (Ill. Rev. Stat. 1977, ch. 48, par. 60.) The appellee relies on ' McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573, which the majority attempts to distinguish by stating that, although the plaintiff in McNellis “was engaged in an extrahazardous activity which was an integral part of the steel erection operation^] [t]his cannot be said of plaintiff here.” I feel this conclusion is unsupported by the record and is belied by a more careful analysis of McNellis.
Under the McNellis ruling, the plaintiff is entitled to recover from the defendant if the repair of the crane can be characterized as an integral part of the construction of the power plant. The supreme court formulated the rule as follows:
“The determinative question is whether the unloading activities being performed by the decedent at the time of the accident constituted the ‘erection of any building or other structure’ within the meaning of this statutory provision.
We have held on previous occasions that the Structural Work Act should be given a liberal construction to effectuate its purpose of protecting persons engaged in extra-hazardous occupations of working in and about construction, repairing, alteration, or removal or buildings, bridges, viaducts, and other structures. [Citations.] Consistent with that policy, we agree with the appellate court that under the terms of this contract and facts of this case the unloading may fairly be viewed as an integral part of the erection operation.” (Emphasis added.) 58 Ill. 2d 146,151.
In the case sub judice, the majority opinion ignores the contract between the defendant and the contractor. This contract contained a clause entitled “SCOPE OF WORK” which provided that the contractor would perform certain duties regarding “the following phases comprising the Scope of Work: *** b) All tool and construction equipment and all services, supplies and maintenance thereof.” (Emphasis added.) This provision places the repair of construction equipment squarely within the scope of the construction work. Under McNellis, such a contract provision is not only relevant, but taken with the facts of the case, is dispositive of the determinative question of whether the repair of the crane constitutes the “erection of any building or other structure” within the Act. (58 Ill. 2d 146, 151.) The contract language above quoted is evidence that even the defendant contemplated the repair of the crane to be an integral part of the erection process. The other facts of the case point to the same conclusion.
As the majority indicates, plaintiff was required by union rules to be present during repair. The majority’s characterization of the mechanic’s testimony colors this important account of events. The majority maintains that “no assistance was requested by the mechanic who could not state why plaintiff would enter the cab of the crane the morning of the accident.” The crane was out of service for generator repair and the mechanic testified that all controls, including those for the generator, were inside the cab. The following colloquy ensued under direct examination: “Q. Okay. So to do any operation at all you would have to climb up into the cab to do the operation? A. Yeah, you would have to get into the cab on it.” (Emphasis added.) The mechanic was later asked what he remembered of the accident itself and was not, as the majority recitation of facts implies, asked why plaintiff would enter the cab. In response to the actual question, the mechanic’s answer was that “Well, I was on the back of it taking the generator off of it, which is a portable generator that mounts on the back of it. And Ken went around front, Cooley did, to get in it or something. I don’t remember what. But anyhow I heard him yell. And when he came back around.he said he slipped and hurt his back.” (Emphasis added.) The mechanic never stated that “no assistance was requested ***”; on the contrary, he testified on cross-examination that the reason an operator stays at the equipment during repair is because “a mechanic goes out by himself and they [sic] is so many things that one guy can’t do on a piece of equipment like that where you need some help. So it’s just set up so the operator stays and works on his own equipment.” (Emphasis added.) Defense counsel then asked whether the operator actually would assist the mechanic or if he merely stayed. The witness replied, “Yes, if you need help he helps you.” Defense counsel later inquired, “Do you remember needing any assistance prior to him slipping?” The witness answered, “Yeah, I had to have assistance getting it off because the way it bolts on there ain’t no way one guy can get to the top and the bottom of the bolts to get them off. You’ve got to have assistance there.” This testimony establishes that the plaintiff was not only present during the repair work, but actually assisted in the repair of the crane. This fact, coupled with the contract provision discussed above, brings this case squarely within the ruling of McNellis. I conclude that the plaintiff was injured while engaged in activity which was an integral part of the construction operation and is therefore covered by the Act.
The McNellis rationale, however, does not constitute the only reason we should affirm the circuit court. The equipment upon which plaintiff was working was a crane and therefore is itself covered by the Act. (Ill. Rev. Stat. 1977, ch. 48, par. 60.) Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318, is distinguishable because that case did not involve a crane, and so the plaintiff in that case was relegated to arguing, unsuccessfully, that he was working on a “structure.” In the ease at bar, plaintiff was not provided with a stepladder or other support for use in entering the machine. “The absence of a suitable support for plaintiff’s use in the utilization of the machine is equally actionable under the statute since it was required to be '*** operated as to give proper and adequate protection to the life and limb of any person *** employed or engaged thereon.’ ” (Acquaviva v. Sears Roebuck & Co. (1979), 68 Ill. App. 3d 588, 591, 386 N.E.2d 381.) In the instant case, a proper application of the statute would place a duty upon the defendant to provide a safe and suitable method of entry into the cab of the crane. This was not done, and therefore I would affirm the trial court.
The majority cites Rayfield v. Homart Development Co. (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193, for the proposition that liability under the Act may only be imposed where “injuries to third parties occurred because of the unsafe operation of the mechanical contrivance as well as cases in which injuries occurred due to a functional or operational defect of the mechanical contrivance.” (Emphasis added.) (100 Ill. App. 3d 620, 623.) The passage in Rayfield on which the majority relies cites no authority at all for the rule which it purports to derive. Such a radical change in the policy of this State is best left to the supreme court and the legislature and not to the appellate court. Returning to the case at bar, the facts adduced at trial meet even the novel test set forth in Rayfield. Where an injury is caused because of difficulty entering the machine, an operational defect exists because the machine is impossible to operate without encountering the defect.
Finally, I would also note that Crafton v. Lester V. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 263 N.E.2d 817, is distinguishable because the plaintiff in the instant case was engaged in repairing the generator which provided power to move conveyors along the boom of the crane. This activity concerns the crane qua crane and not, as in Crafton, as an item of personal transportation.
For these reasons I conclude that the trial court’s decision was supported by both the law and the evidence, and I therefore respectfully dissent from the majority opinion.