Houlihan v. Sulzberger & Sons Co.

• Decision Date: 06 February 1918
• Docket Number: No. 11432.,11432.
• Court: Illinois Supreme Court
• Parties: HOULIHAN v. SULZBERGER & SONS CO.

282 Ill. 76

118 N.E. 429

HOULIHAN

v.SULZBERGER & SONS CO.

No. 11432.

Supreme Court of Illinois.

Dec. 19, 1917.

Rehearing Denied Feb. 6, 1918.

Error to Appellate Court, First District, on Appeal from Superior Court, Cook County; C. F. Irwin, Judge.

Action by Margaret Houlihan, administratrix, against Sulzberger & Sons Company. A judgment for plaintiff was affirmed by the Appellate Court (204 Ill. App. 449) and defendant brings certiorari. Affirmed.

Moritz Rosenthal, Henry H. Kennedy, Joseph W. Moses, Julius Moses, Walter Bachrach, and S. Sidney Stein, all of Chicago (Hamilton Moses and Henry Jackson Darby, both of Chicago, of counsel), for plaintiff in error.

James C. McShane, of Chicago, for defendant in error.

DUNN, J.

Margaret Houlihan, as administratrix of the estate of Frank A. Houlihan, her deceased husband, recovered a judgment for $6,500 in the superior court of Cook county against the Sulzberger & Sons Company for negligently causing his death. The Appellate Court affirmed the judgment, and the record has been brought here by writ of certiorari for review.

Houlihan was killed on September 30, 1912, by falling from a ladder attached to a building of the plaintiff in error. He was an employé of the Hamler Boiler & Tank Works, a corporation which was employed by the plaintiff in error to repair an iron band which encircled a smokestack of the plaintiff in error. The smokestack was about 150 feet high and 6 or 8 feet in diameter. The band was about 75 feet above the roof of the power house, and to it were attached four guy wires, the other ends of which were attached to anchors upon different buildings of plaintiff in error. At the time of the accident which resulted in Houlihan's death, the band had been repaired and two of the guy wires had been attachedto their anchors. A third wire was to be attached to an eyebolt fastened to the north wall of the plaintiff in error's fertilizer building, which was a five-story building of fireproof brick and cement construction, about 50 feet high, having an inside measurement of 23 feet square. Inside the building were iron stairways extending from the ground floor to the fourth floor, a wooden stairway from the fourth floor to the fifth floor, and a stationary ladder from the fifth floor to the skylight in the roof, which was usually left open, but had a cover which could be closed in case of rain. On the south side of the building, at the level of the second floor, was a roof extending out from the building about 16 feet. From this roof to the top of the building was a permanent wooden fire ladder, painted red, the sides of which were of yellow pine two by six inches, fastened to the building with the broad side perpendicular to its walls. The rungs were one-inch oak strips two inches wide, mortised into the uprights, so that their ends were even with the outsides of the uprights and the two-inch faces were even with the outer faces of the uprights. One-inch oak strips two inches wide were fastened to the outer faces of the uprights over the rungs. The upper part of this ladder from which the deceased fell had been constructed about seven years prior to the accident. There was a shorter ladder from the ground to the roof, where this ladder started. Houlihan was going up the fire ladder, having been preceded by a fellow workman who had reached the roof and being followed by another who was about 15 feet up the ladder. The latter heard a cry, and looking up saw Houlihan falling over backward clear of the ladder and about 10 feet from its top. No one saw Houlihan at the instant he started to fall. After the accident it was discovered that the second and third rungs from the top had pulled loose and the strips fastened to the outer faces of the uprights had been loosened for a distance of about 15 feet from the top of the ladder. There was evidence tending to show that the ends of the rungs which pulled loose were rotten, and that there was a hole in each end of one of the rungs through which the nail or screw had pulled.

It is urged that there was no evidence tending to prove negligence on the part of the plaintiff in error; that Houlihan was using the ladder for his own convenience, without any authority or invitation of the plaintiff in error to do so; and that, the plaintiff in error having provided a safe interior means of access to the roof, Houlihan had no right to use the fire ladder. There was nothing in the contract between the plaintiff in error and the Hamler Boiler & Tank Works in regard to the means of access to the roof, and, if there had been no means of access, it may be conceded that the Hamler Works would have been obliged to provide such means. The work to be done, however, required that the workmen should obtain access to the roof, and where the owner of a building contracts for work which requires access to the building, and where there is already a permanent means of access provided for that purpose to the parts of the building where the workmen are required to be, they are not trespassers or mere licensees in making use of such means of access. If the deceased had gone up the stairways and ladder inside the building, he could not reasonably be called a trespasser, and, if he had been injured by reason of their defective condition, the plaintiff in error would not have been relieved of liability. The fact that of two ways, apparently equally available, he chose the one that was more convenient, does not change the rule. While the fire ladder was constructed primarily for use in case of fire, it was a legitimate use of it to obtain access to the roof for persons having occasion in the business of plaintiff in error to go there. The cases cited by the plaintiff in error are cases where the person injured was in some part of the premises to which the business he was employed in did not call him, or made use of an appliance or structure for some use for which it was not intended or in some manner different from the usual way. The ladder was constructed to bear the weight of firemen carrying hose. The fact that it gave way under the weight of the deceased indicates that it was not properly constructed or had not been kept in a safe condition. The nails would not have pulled through the ends of the rungs, and the strips on the outside of the uprights would not have pulled loose, if the ladder had been in a proper and safe condition.

It is insisted, however, that the plaintiff in error was not guilty of a lack of ordinary care in endeavoring to keep the ladder in a safe condition. The evidence shows that the ladder was painted once a year, and that about two months before the accident it had been inspected and painted and that no defect had been discovered. The rotten condition of the ends of the rungs for a half inch to an inch from their ends, so that a nail could be pulled through and the ends crumbled with the fingers, as testified to by a witness, tended to show that the condition must have existed for a longer time than two months and could have been discovered by a thorough inspection. It is said that the ends of the rungs were covered by the strips on the outside of the ladder....