dissenting:
The majority, in reversing, concludes that prejudicial error was committed when the court refused plaintiffs tendered instruction defining the word “wilful”. This instruction was based upon the Illinois Supreme Court’s construction of the meaning of a wilful violation of the Structural Work Act in Schultz v. The Henry Ericsson Co. (1914), 264 Ill. 156, 106 N.E.236. The use of the language of cases in jury instructions is a practice not looked upon with favor. (Spiezio v. Commonwealth Edison Co. (1968), 91 Ill.App.2d 392, 417, 235 N.E.2d 323, 335.) Therefore, I believe that the court was correct in refusing the tendered instruction. Even if the instruction was proper, however, I do not believe that the corut’s refusal to give it prejudiced the plaintiff’s case.
Under his complaint, the plaintiff had to prove that the defendants were in charge of the work being performed and that they wilfully violated the Structural Work Act. Illinois Revised Statutes, Chapter 48, Section 69 (1971).
The plaintiff, Rocco Assise, was an electrician employed by the St. Amaud Electric Company, the electrical subcontractor. The scaffold upon which he was injured was brought to the job site by St. Arnaud and owned or leased by it. The defendant, Dawes Laboratories was the owner of the premises; Presbítero & Sons was described as a subcontractor for general work, and A. Epstein & Sons the architect.
Dawes entered into a contract with McKinley Construction Company, who undertook complete construction of the building as the general contractor. McKinley subcontracted the work to other contractors, including Presbítero and St. Amaud. Some years after the complaint was filed McKinley was made a party defendant, but was dismissed on the ground that as to it the action was barred by the statute of limitations. No appeal was taken Rom this order.
The evidence established that Dawes was not in charge of any part of the construction. Presbítero was concerned only with its own scaffold, which was used in its masonry work. It had no occasion to inspect the scaffold owned and used by St. Arnaud and was not expected to do so. In addition, it was stipulated that Presbítero had completed the job approximately one month prior to the accident. Epstein was the architect. Its sole responsibility was to determine whether the work conformed to the plans and specifications which it had prepared.
Clearly this evidence was not sufficient to establish that any of the defendants was in charge of the work being done. In this regard, it is significant to note that plaintiff does not contend that the verdict was against the manifest weight of the evidence.
Moreover, under the Structural Work Act, the plaintiff must prove that the scaffold was defective. Here the plaintiffs own witness, Herbert Drummond, who was St. Amaud’s foreman, testified that the scaffold was solid and sturdy and that the plywood platform was properly secured to the frame with cleats. He further testified that plaintiff told him that the accident occurred when he attempted to climb up the scaffold using the cross braces as a ladder and that the plywood came out of the cleats as he pulled himself up on it. The plaintiff attempted to impeach Drummond during the direct examination; however, the court refused to allow it.
The majority states that, having refused the tendered instruction, the court compounded the error by allowing counsel for the defendants to tell the jury in his closing argument that the meaning of "wilful” was plain on its face. The record reveals that in the conference on jury instructions the plaintiff requested and was granted permission of the court to tell the jury in his closing argument what the word “wilful” meant under the statute. He took advantage of this opportunity and went into great detail. As plaintiff opened the subject, he is in no position now to complain because the defendant answered his argument. For that reason, obviously, he did not object to defendant’s argument.
It is well established that a judgment will not be reversed for error unless it appears that such affected the outcome of the case. (Lindroth v. Walgreen Co. (1950), 407 Ill. 121, 136, 94 N.E.2d 847, 854.) Here, the plaintiff simply failed to prove that one or more of the defendants was in charge of the work. He also failed to convince the jury that the scaffold was defective. For these reasons I do not believe that the court’s refusal to give the jury instruction tendered by the plaintiff affected the outcome of the case, and I perceive no reason why a new trial should be ordered.