Nelson v. Union Wire Rope Corp., Gen. No. 48164

CourtUnited States Appellate Court of Illinois
Writing for the CourtENGLISH; MURPHY; PER CURIAM
Citation39 Ill.App.2d 73,187 N.E.2d 425
PartiesCharles Joseph NELSON et al., Plaintiffs-Appellees, Separate Appellants, Cross-Appellants, v. UNION WIRE ROPE CORPORATION, and Archer Iron Works, a corporation, Defendants-Appellees, and American Mutual Liability Insurance Company, a corporation, Defendant-Appellant, Cross-Appellee.
Decision Date04 January 1963
Docket NumberGen. No. 48164

Page 425

187 N.E.2d 425
39 Ill.App.2d 73
Charles Joseph NELSON et al., Plaintiffs-Appellees, Separate
Appellants, Cross-Appellants,
v.
UNION WIRE ROPE CORPORATION, and Archer Iron Works, a
corporation, Defendants-Appellees,
and
American Mutual Liability Insurance Company, a corporation,
Defendant-Appellant, Cross-Appellee.
Gen. No. 48164.
Appellate Court of Illinois, First District, First Division.
Jan. 4, 1963.
Rehearing Denied Jan. 30, 1963.

[39 Ill.App.2d 82]

Page 428

James A. Dooley, Chicago, for plaintiffs-appellees, separate appellants, cross-appellants.

Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, for Archer Iron Works, defendant-appellee, Max E. Wildman, Frederick W. Temple, Chicago, of counsel.

Hinshaw, Culbertson, Moelmann & Hoban, Chicago, for Union Wire Rope Corp., defendant-appellee, John M. Moelmann, Oswell G. Treadway, Thomas J. Weithers, Chicago, of counsel.

Winston, Strawn, Smith & Patterson, Berchem, Schwantes & Thuma, Chicago, for American Mut. Liability Ins. Co., defendant-appellant, cross-appellee, Douglas C. Moir, George B. Christensen, Donald N. Berchem, Edward J. Wendrow, Chicago, of counsel.

ENGLISH, Justice.

After thirteen weeks of trial on the claims of eighteen plaintiffs for personal injuries and wrongful deaths, judgments were entered on jury verdicts finding the defendants Union Wire Rope Corporation and Archer Iron Works not guilty, and finding the defendant American Mutual Liability Insurance Company guilty. Damages were assessed in a total amount of $1,569,400.

[39 Ill.App.2d 83] Four appeals have been filed. Plaintiffs have appealed from the not guilty judgments, and American has appealed from the judgment against it. As to the latter, plaintiffs have filed a cross-appeal.

The event which forms the basis of the complaint occurred on March 19, 1957 at the construction site of the Duval County Courthouse in Jacksonville, Florida, and Florida law governs the substantive rights of the parties. (Mithen v. Jeffery, 259 Ill. 372, 102 N.E. 778.) Nineteen workmen (including the eighteen plaintiffs 1) were riding on the platform of a hoist which fell from the sixth floor level when a cable broke. Seven were killed and the others were injured. No action was brought on behalf of one of the decedents. Two of the plaintiffs were employees of the general contractor, George D. Auchter Company, which owned and operated the hoist, and the others were employees of Auchter's subcontractors.

The original complaint was filed by two plaintiffs against Archer, manufacturer of the hoist, and Union, manufacturer of cable. Later on, sixteen plaintiffs sued the same two defendants along with American, the workmen's compensation and public liability carrier for Auchter. American was then added as a defendant in the original

Page 429

complaint and all actions were consolidated.

The complaint against Archer charged that it negligently designed and constructed the hoist and its safety devices; negligently sold the hoist to Auchter with knowledge that it was imminently dangerous because its safety devices were defective; negligently failed to inspect or test the host; and negligently failed to warn plaintiffs that the safety devices were inadequate. The complaint also charged that Archer had warranted that the hoist and its safety devices [39 Ill.App.2d 84] were reasonably fit for the purpose for which they were sold, whereas they were unsafe and defective.

Archer denied all charges of negligence and alleged that the occurrence in question was caused solely by negligence on the part of Auchter. Archer admitted that it had warranted the hoist to be fit for the purpose of hauling a reasonable amount of material, but denied any warranty of fitness for the hauling of personnel. It also denied that it had breached any warranty.

As to Archer, it is plaintiffs' theory on appeal that, under the evidence, this defendant was guilty of both negligence and breach of warranty as a matter of law, and that, therefore, the not guilty judgment should be reversed with judgment here for plaintiffs on the question of liability, and remandment for a new trial on the question of damages only.

The complaint against Union charged that it negligently manufactured the cable; negligently sold the cable, knowing it to be defective or dangerous when used for the purpose intended; negligently failed to inspect and test the cable; and negligently failed to warn plaintiffs that it was defective. The complaint also charged that Union had warranted the cable to be reasonably fit for the purpose for which it was sold, whereas it was unsafe and defective.

By its answer, Union denied all allegations of negligence, denied proximate cause, and, as to the warranty charge, denied privity of contract and denied that it had sold or warranted the cable to be fit for any particular purpose. It also denied that it had breached any warranty or that the cable was defective.

As to Union, it is plaintiffs' theory on appeal that the not guilty judgment should be reversed and the cause remanded for a complete new trial because of erroneous rulings of the trial court on the admission [39 Ill.App.2d 85] of evidence, and because of improper conduct on the part of Union's counsel. 2

The complaint against American charged that, either gratuitously or pursuant to its compensation and liability policies with Auchter, it had undertaken to inspect Auchter's safety practices and machinery, including hoists, and had represented that it would report to Auchter any unsafe practices or conditions found. It was also alleged that Auchter expected such reports to be made. The complaint further charged that American, having thus assumed the duty to make safety inspections, was negligent in the performance of such duty in regard to the hoist and as a proximate result thereof plaintiffs were killed or injured. Further, and more specifically, American was charged with having negligently failed to detect and report: that the hoist's safety devices were inadequate and defective; that the tower was improperly designed and manufactured in regard to its safety mechanism; that the cable was in a worn condition; that the hoist was being used for the hauling of personnel, in violation of a city ordinance; and that a sheave on the hoist was of

Page 430

improper size, in violation of a city ordinance. It was also charged that American observed but negligently failed to warn Auchter or its personnel, including plaintiffs, against the practice of carrying personnel on an improperly equipped hoist which it knew or ought to have known was hazardous.

American denied each of the negligence allegations; denied that it had assumed the duty alleged; admitted that it had made intermittent inspections for the [39 Ill.App.2d 86] purpose of keeping itself advised on the risk which it insured. American pleaded further that it never undertook any control or responsibility for the hoist or its cable or sheave; had nothing to do with their design, manufacture, purchase, installation or maintenance, and assumed no duty in connection therewith. This defendant also pleaded that, because it was Auchter's compensation carrier, it was not subject to suit as a third party tort-feasor under the Florida compensation statute; that, if American were to be considered as having performed safety engineering duties on behalf of Auchter, it would thereby have become a subcontractor, and thus also immune from plaintiffs' suit under the same statute. It also pleaded that plaintiffs had been guilty of contributory negligence and had assumed the risk involved in riding on the hoist.

It is the position of American on appeal that it is entitled to a not guilty judgment as a matter of law, and that, therefore, the judgment against it should be reversed. In the alternative its theory is that, because of various errors in the course of the trial, the cause should be remanded for a new trial on the issue of liability only.

With respect to their cross-appeal against American, it is plaintiffs' contention that the damages awarded were inadequate, and that, because of trial errors, the judgment against American should be reversed and the cause remanded for a new trial on the issue of damages only.

The facts in their general outline are not in dispute.

Late in 1955 Auchter decided to buy an Archer construction hoist for use at its Duval County Courthouse project. It purchased such a hoist from Moody & Sons, a manufacturers' representative in Jacksonville. The parts for the hoist were manufactured by Archer and shipped direct to Auchter, together with blueprints[39 Ill.App.2d 87] for its erection. Archer did not supply the motor or the cable.

The hoist consisted of a double-welled tower, 130 feet high, constructed of three-inch standard tubular steel in which two skeletal cages, or bails, could be raised and lowered. The bails were so designed that either a platform 6 1/2 feet square or a large concrete bucket could be attached. The occurrence in question took place in the south tower where a platform was in operation, while a concrete bucket was employed in the north tower.

The bail, with the platform attached, was raised and lowered by steel cable and moved along vertical guide rails on each side. The hoist was equipped with a 'broken rope safety,' consisting of two serrated jaws, or 'dogs,' attached to the bail. The jaws were designed to be forcibly extended outward to engage the two guide rails whenever pressure was released on the cable, thus arresting the gravitational fall of the platform by the metal friction produced between the dogs and the rails.

The south hoist was erected in May, 1956 and was continuously in use until the time of the accident ten months later. The cable employed in the tower was a 3/4-inch steel wire rope manufactured by Union in March, 1956 and purchased by Auchter from a dealer in Jacksonville. The hoist was put up and rigged, and later rerigged, by...

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31 practice notes
  • Nelson v. Union Wire Rope Corp., No. 37795
    • United States
    • Supreme Court of Illinois
    • March 18, 1964
    ...in favor of Union Wire and Archer Iron, but reversed outright the judgments against American Mutual. (Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 187 N.E.2d 425.) We have allowed the plaintiffs' petition for leave to appeal to further review the matter. In addition, we have granted l......
  • Chisolm v. Stephens, No. 76-57
    • United States
    • United States Appellate Court of Illinois
    • March 30, 1977
    ...may arise where the beneficiaries had relied on its performance. (See Hubbard v. Aetna Ins. Co.; Nelson v. Union Wire Rope Corp. (1963), 39 Ill.App.2d 73, 187 N.E.2d 425, rev'd on other grounds, 31 Ill.2d 69, 199 N.E.2d 769 (1964); Restatement (Second) of Torts (1965), § 323.) Under those c......
  • Smith v. Liberty Mut. Ins. Co., No. C-74-262-D.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 3, 1976
    ...Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971); Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769 (1964), rev'g. 39 Ill.App.2d 73, 187 N.E.2d 425 (1963); Fabricus v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.E.2d 361 (1963); Bryant v. Old Republic Ins. Co., 431 F.2d 138......
  • Cirro Wrecking Co. v. Roppolo, No. 72759
    • United States
    • Supreme Court of Illinois
    • October 22, 1992
    ...in People ex rel. Byrnes [153 Ill.2d 18] v. Standard (1956), 9 Ill.2d 372, 137 N.E.2d 829, and Nelson v. Union Wire Rope Corp. (1963), 39 Ill.App.2d 73, 187 N.E.2d 425, as well as in decisions rendered in foreign jurisdictions involving similar issues (see Bowles v. D. Mitchell Investments,......
  • Request a trial to view additional results
31 cases
  • Nelson v. Union Wire Rope Corp., No. 37795
    • United States
    • Supreme Court of Illinois
    • March 18, 1964
    ...in favor of Union Wire and Archer Iron, but reversed outright the judgments against American Mutual. (Nelson v. Union Wire Rope Corp., 39 Ill.App.2d 73, 187 N.E.2d 425.) We have allowed the plaintiffs' petition for leave to appeal to further review the matter. In addition, we have granted l......
  • Chisolm v. Stephens, No. 76-57
    • United States
    • United States Appellate Court of Illinois
    • March 30, 1977
    ...may arise where the beneficiaries had relied on its performance. (See Hubbard v. Aetna Ins. Co.; Nelson v. Union Wire Rope Corp. (1963), 39 Ill.App.2d 73, 187 N.E.2d 425, rev'd on other grounds, 31 Ill.2d 69, 199 N.E.2d 769 (1964); Restatement (Second) of Torts (1965), § 323.) Under those c......
  • Smith v. Liberty Mut. Ins. Co., No. C-74-262-D.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 3, 1976
    ...Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971); Nelson v. Union Wire Rope Corp., 31 Ill.2d 69, 199 N.E.2d 769 (1964), rev'g. 39 Ill.App.2d 73, 187 N.E.2d 425 (1963); Fabricus v. Montgomery Elevator Co., 254 Iowa 1319, 121 N.E.2d 361 (1963); Bryant v. Old Republic Ins. Co., 431 F.2d 138......
  • Cirro Wrecking Co. v. Roppolo, No. 72759
    • United States
    • Supreme Court of Illinois
    • October 22, 1992
    ...in People ex rel. Byrnes [153 Ill.2d 18] v. Standard (1956), 9 Ill.2d 372, 137 N.E.2d 829, and Nelson v. Union Wire Rope Corp. (1963), 39 Ill.App.2d 73, 187 N.E.2d 425, as well as in decisions rendered in foreign jurisdictions involving similar issues (see Bowles v. D. Mitchell Investments,......
  • Request a trial to view additional results

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