Campione v. Henry C. Lytton & Co.

• Decision Date: 15 March 1965
• Docket Number: Gen. No. 49328
• Citation: 57 Ill.App.2d 147,206 N.E.2d 780
• Court: United States Appellate Court of Illinois
• Parties: Salvatore CAMPIONE, Plaintiff-Appellant, v. HENRY C. LYTTON & COMPANY and Otis Elevator Company, Defendants-Appellees. HENRY C. LYTTON & COMPANY, Third-Party Plaintiff, v. KRAHL CONSTRUCTION COMPANY, Third-Party Defendant.

Page 780

206 N.E.2d 780

57 Ill.App.2d 147

Salvatore CAMPIONE, Plaintiff-Appellant, v. HENRY C. LYTTON & COMPANY and Otis Elevator Company,

Defendants-Appellees.

HENRY C. LYTTON & COMPANY, Third-Party Plaintiff, v. KRAHL CONSTRUCTION COMPANY, Third-Party Defendant.

Gen. No. 49328.

Appellate Court of Illinois, First District, First Division.

March 15, 1965.

Berbera & Friedlander, Chicago, Joseph Barbera and Dom J. Rizzi, Chicago, of counsel, for plaintiff-appellant.

Baker, McKenzie & Hightower, Chicago, Francis D. Morrissey, Michel A. Coccia, Philip J. McGuire, Chicago, of counsel, for defendant-appellee Henry C. Lytton & Co.

Andrew J. Farrell, Anton J. Valukas, Chicago, for defendant-appellee Otis Elevator Co.

KLUCZYNSKI, Justice.

Plaintiff, Salvator Campione, appeals from the entry of a summary judgment in favor of defendant, Otis Elevator Company, and from a directed verdict in favor of defendant, Henry C. Lytton & Company, at the conclusion of plaintiff's evidence. The suit was for the recovery of damages allegedly occasioned by the defendants' negligence and violation of the Structural Work Act (Ill.Rev.Stat.1963, ch. 48, secs. 60-69).

The complaint alleged that Lytton owned the premises and engaged Krahl Construction Company to do a certain portion of the construction and remodeling of the building; that plaintiff, an employee of Krahl, was engaged in certain portions of said construction work where Lytton owned, controlled and maintained a certain elevator which it caused, allowed and permitted to be used as a scaffold for workmen to stand on; that Lytton constructed, caused to be constructed and allowed and permitted to be constructed certain scaffolding on top of said elevator which was also used by various workmen engaged in the construction and remodeling of said area; that the said elevator was operated by an employee, agent and servant of defendants Lytton and Otis for use as a scaffold by the workmen; that the said elevator was also used as a hoist for lifting materials; that it was the duty of Lytton and Otis, in the maintenance and use of the elevator, to exercise reasonable care and caution in the operation and control thereof and to exercise reasonable care and caution in the construction, inspection and maintenance and use of the elevator as a scaffold and of the scaffolding constructed on top of the elevator so that the elevator and scaffolding were reasonably safe and proper for use, and to exercise reasonable care and caution in enclosing or fencing the sides of the elevator shaft by substantial barriers or railing so that workmen, while using the elevator, scaffolding and shaft, would not be likely to fall as a result of any defective condition or negligent use of the elevator, scaffolding and shaft.

The complaint then charged Lytton with carelessly, negligently, unlawfully and wilfully failing to comply with the Structural Work Act; that as a result thereof the elevator, the scaffolding on top of the elevator, and the elevator shaft openings were dangerous and defective for use, as a result whereof plaintiff, while working on top of the elevator and scaffolding, was injured.

The complaint further alleged that while plaintiff was working on top, the operator of the elevator carelessly, negligently and improperly operated and controlled the elevator whereby it jerked and moved causing plaintiff to fall and sustain injuries.

Lytton, in its answer, admitted owner ship of the premises and the contract with Krahl but denied the other allegations as to liability. Otis answered, denied liability and filed a motion for summary judgment supported by an affidavit of L. R. Humbert, its assistant secretary, and the deposition of John Ekblom, an employee of Krahl. Plaintiff countered with an affidavit of his counsel setting forth testimony adduced from interrogatories and excerpts of depositions taken of Frank Wojciechowski, a Krahl employee, and of the plaintiff.

In Humbert's affidavit he stated that at no time was elevator number two operated by an employee, agent and servant of Otis for use as a scaffold by workmen; that at no time was it the duty of Otis to operate or control said elevator; and that at no time did Otis engage in the construction, inspection and maintenance and use of said elevator as a scaffold. Ekblom testified by deposition that he was sent to Krahl from the local union to operate the elevator on the Lytton job. He was working for Krahl. The elevator had been turned over to them to use while they were wrecking the front. It was manually operated with controls on the inside. He was on the job two or three weeks when the incident occurred. His duties were to run the elevator, to raise it, to have it at their disposal when they wanted it. It was used at the time for wrecking the fronts for the Krahl Company. New elevator fronts were being put in. He was on the job that day. Plaintiff was the labor boss for Krahl. He raised the car when plaintiff wanted it. He saw plaintiff fall. The elevator was then about eighteen inches or two feet above the floor. Nobody was present besides Campione and himself except one of 'our laborers' named Frank. 'The area was broken up--bricks, plaster, and things like that, on the floor beside a barricade which was built of wood about four or five feet around in front of the elevator and extending from floor to ceiling'.

When the plaintiff fell Ekblom was sitting inside the car, alongside of the controls, right at the opening. The front of the elevator was removed and the carpenters had built a platform on the top thereof before the wrecking started. He saw the plaintiff come down the ladder and fall on the floor right in front of him. It was a regular wooden building ladder that was laying against the barricade. Plaintiff was hanging up a tarpaulin in front of the elevator so that as they were breaking the plaster and bricks down 'they wouldn't fall down on their heads'. He came down on the ladder from the top of the elevator and 'when he came down he slipped and fell down on the floor'. The elevator did not move at all. The juice was shut off. You would have to pull a switch to put it on. No one from Otis or Lytton was in the particular vicinity where the fall occurred. He saw no Otis employees doing any work on this shaft at the time. On cross-examination, in the deposition, he described the elevator as having most of its metal top removed and the said platform built thereon consisting of 2 X 10's. The front of the car (cab) and canopy were removed.

Plaintiff's counter affidavit alleged that Frank Wojciechowski, an employee of Krahl, by deposition testified that their work was to remove the front of the old elevators and that they had nothing to do with dismantling the old or putting in new elevators * * * 'that was somebody else's job'; that Lytton made answers to interrogatories giving the names of Otis Elevator Company, Krahl Construction Company, Hyre Electric Company and General Floor Company as contractors doing work on the premises. The counter affidavit further alleged that plaintiff, in his deposition, testified as follows:

'Q. Do you know what caused the car to move?

'A. Well, I asked the man after I fell.

'Q. What did you ask?

'A. The elevator man--the fellow that moved the car, and I asked if the Otis guys--and he says, when they work on the cables--because they rust--that people, those people, work at the same time I work on the car. They work on the cables the same minute when I fall, before I know it. I can't stop them. I have no authority to stop those people--they work in the penthouse the same car I was in.

'Q. Did you see them do that?

'A. Yes.

'Q. You saw them work on the cables of the car you were using?

'A. Yes, on top.

'Q. At that particular time?

'A. At that particular time.

'Q. Did you see them, at the time you fell, working on the penthouse, on the cables?

'A. Yes.

The counter affidavit further alleged that Otis in answer to interrogatories gave names of a foreman, four mechanics and four helpers as their employees working on the premises on the day in question and immediately prior thereto.

The court sustained the motion for summary judgment and dismissed the cause as to Otis.

Plaintiff attacks the affidavit of L. R. Humbert as insufficient, without weight and containing conclusions in violation of Supreme Court Rule 15 (Ill.Rev.Stat.1963, Ch. 110, sec. 101.15). This point is raised for the first time on appeal. The affiant, being the assistant secretary for Otis, on oath averred that if called upon to testify in the case he would testify to the facts therein alleged. No question being raised in the trial court to dispute this we must assume he could so testify. A similar situation was considered in Wool v. Solar Aircraft Co., 47 Ill.App.2d 84, 90, 197 N.E.2d 477, 481 (1964), and we can only repeat our observation there. 'We consider the affidavit to be sufficient as to both substance and form, and so hold, even though plaintiff is not in a position to raise this question here because he made no objection to the affidavit in the trial court.'

Plaintiff charged Otis with a duty under the Structural Work Act in the maintenance and use of the elevator, to exercise care and caution in the operation, control and inspection of the elevator as a scaffold and of the scaffolding on top thereof so that the elevator would be safe and proper for use. He further charged Otis with a duty to use care and caution in enclosing and fencing the sides thereof, etc.

However, the facts disclosed in the motion for summary judgment failed to indicate that Otis was 'in charge of' the work involving the violation or of the scaffolding involved in the work, since there is no evidence that it, in fact, had anything to do with the maintenance and use, operation, control, construction, or inspection of the elevator or the scaffolding on top thereof, or that it had anything to do with enclosing and fencing the sides thereof.

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