McNellis v. Combustion Engineering, Inc.

• Decision Date: 27 September 1974
• Docket Number: No. 46164,46164
• Citation: 58 Ill.2d 146,317 N.E.2d 573
• Parties: Dorothy McNELLIS, Ind. and as Adm'r, Appellee, v. COMBUSTION ENGINEERING, INC., et al. Appeal of COMMONWEALTH EDISON COMPANY.
• Court: Illinois Supreme Court

Page 573

317 N.E.2d 573

58 Ill.2d 146

Dorothy McNELLIS, Ind. and as Adm'r, Appellee, v. COMBUSTION ENGINEERING, INC., et al. Appeal of COMMONWEALTH EDISON COMPANY.

No. 46164.

Supreme Court of Illinois.

Sept. 27, 1974.

William P. Nolan, of Pretzel, Stouffer, Nolan & Rooney, Chicago (Joseph B. Lederleitner and James F. Carlson, Chicago, of counsel), for appellant.

A. Denison Weaver, Chicago, for appellees.

UNDERWOOD, Chief Justice:

Dorothy McNellis, individually and as administrator of the estate of her deceased husband, Charles B. McNellis, brought suit in the circuit court of Cook County against Commonwealth Edison Company and other defendants to recover damages resulting from fatal injuries sustained by her husband while unloading component parts of a steam generator from a railroad car on Commonwealth Edison's property. A jury returned a verdict in favor of plaintiff and against Commonwealth Edison in the amount of $160,000 on a count alleging violation of the Structural Work Act (Ill.Rev.Stat.1963, ch. 48, pars. 60 through 69). The Appellate Court, First District, affirmed (13 Ill.App.3d 733, 301 N.E.2d 96), and we granted leave to appeal.

Commonwealth Edison urges reversal of the judgments of the appellate and trial courts on the grounds that: (1) the classification of employees granted or denied benefits under the Structural Work Act is so vague and arbitrary as to render the statute unconstitutional class legislation; (2) the verdict is against the manifest weight of the evidence, since the owner did nothing over and above engaging an independent contractor and was not 'in charge of' the work which resulted in decedent's fatal injuries; (3) the unloading of equipment from the railroad car was not a structural work activity subject to the provisions of the Act; and (4) the verdict was excessive.

The opinion of the appellate court adequately treats the constitutional arguments and excessive verdict issues raised here, and we see no need for us to comment thereon. Meriting additional attention, however, are the contentions that Commonwealth Edison was not 'in charge of' the work and that the unloading of the equipment was not structural work activity subject to the Act.

The facts of the case are detailed in the appellate court opinion; they will be repeated here only to be extent necessary to our limited discussion.

In 1961, Commonwealth Edison Company entered into a contract with Combustion Engineering, Inc., under which Combustion Engineering was to design, develop, fabricate, furnish and deliver two large steamgenerating units for a new power plant being constructed for Commonwealth Edison on its property near Joliet, Illinois. Pursuant to an option in the contract which was exercised by Commonwealth Edison, Combustion Engineering undertook to unload, erect and finish the units, and subcontracted the unloading and erecting work to Power Systems, Inc., by whom the decedent was employed.

Commonwealth Edison provided a number of temporary railroad sidings on its property to receive materials delivered from time to time for the power plant project. This area was situated about one-half mile from the actual building site and was also used as a storage area for materials after they were unloaded from the railroad cars. When the materials were needed they would be reloaded on railroad cars or trucks for transportation to the power station site on tracks installed by defendant.

On September 3, 1963, Charles McNellis was working as a part of a yard crew unloading two axial seal pedestals from a railroad gondola car at the unloading and storage site on Commonwealth's property. The pedestals, which had been shipped there by a division of Combustion Engineering located in Wellsville, New York, were component parts of air preheaters, which in turn were components of the steam-generating unit to be furnished by Combustion Engineering under the contract. Each of the pedestals was approximately 115 inches long and weighed about 20,000 pounds. They were secured to the railroad car by tie rods as well as by pieces of scrap steel welded to the pedestals and to the bottom and sides of the railroad car. Although there were two cranes in the vicinity which were available for use in unloading, the Power Systems crew decided to proceed without the cranes. While McNellis was assisting in cutting loose the metals plates which held the load to the car, one of the pedestals fell, pinning him to the side of the car. A crane was brought up to the site to free McNellis, but he died six weeks later from the injuries he had sustained.

While there are indications that the unloaded pieces remained in storage in the unloading area for several months before actually being transported to the power plant building for installation, there is no definite testimony as to the length of this interval other than the testimony of one of decedent's co-workers that he participated in their installation some four to six months after the accident. There was testimony that a crane should have been used to hold the pedestals in place while the tie rods and welded plates holding them to the railroad car were being cut.

In concluding that the work being done by the decedent at the time of his injury was a Structural Work Act activity, the appellate court relied upon the fact that the written agreement between Commonwealth Edison and Combustion Engineering provided that the general task of erecting the generators within the power station would necessitate the incidental tasks of unloading and storage. The appellate court further reasoned: 'It is apparent from the record that the power generating facility was a unique structure and that the circumstances of its construction, as well as the size and nature of some of its components, dictated that unloading be performed some distance from the actual building. In addition, we note that the written agreement itself defined the premises as the place where the work was to be done, including all places contiguous thereto and in the vicinity thereof where materials were stored or kept, and we believe that the record fairly demonstrates that the unloading in question was an integral part of the entire operation of erecting the generating units.' (13 Ill.App.3d at 740--741, 301 N.E.2d at 102.) In her brief, plaintiff relies on the foregoing conclusions of the appellate court as well as upon a provision in the general conditions of the contract which provided in part that 'all work shall comply with * * * an Act of Legislature of the State of Illinois entitled (the Structural Work Act) * * *.'

Commonwealth Edison urges to the contrary that the unloading of a piece of equipment in a storage yard a half mile away from the site where the equipment was to be assembled at a point in time far removed from such assembly does not constitute structural work within the purview of the Structural Work Act and that the provisions of the contract do not indicate otherwise.

Section 1 of the Structural Work Act provides: 'That all scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection * * * of any * * * building * * * or other structure, 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 * * *.' The determinative question is whether the...