Oldham v. Kubinski

• Court: Appellate Court of Illinois
• Writing for the Court: CROW; WRIGHT, P. J., and SPIVEY
• Citation: Oldham v. Kubinski, 185 N.E.2d 270, 37 Ill.App.2d 65 (Ill. App. 1962)
• Decision Date: 19 September 1962
• Docket Number: Gen. No. 11572
• Parties: Albert OLDHAM, Appellee. v. John KUBINSKI, Leonard Kubinski, Bernard Kubinski and Donald Kubinski, d/b/a John Kubinski & Sons, Appellants.

Page 270

185 N.E.2d 270

37 Ill.App.2d 65

Albert OLDHAM, Appellee. v. John KUBINSKI, Leonard Kubinski, Bernard Kubinski and Donald Kubinski, d/b/a John Kubinski & Sons, Appellants.

Gen. No. 11572.

Appellate Court of Illinois, Second District, Second Division.

Sept. 19, 1962.

Rehearing Denied Oct. 9, 1962.

Andrew J. Farrell, Chicago, Gray, Thomas, Wallace & O'Brien, Joliet, for appellants.

Robson, Masters, Ryan & Belom, Joliet (Sidney Z. Karasik, Chicago, of counsel), for appellee.

CROW, Justice.

This is an appeal by the defendants from a judgment for $50,000.00 in favor of the plaintiff, Albert Oldham, against the defendants John Kubinski, Leonard Kubinski, Bernard Kubinski and Donald Kubinski, d/b/a John Kubinski & Sons. Anton Brozovich, who was also a party defendant and who was alleged to have been the agent, servant and employee of these defendants, was found 'not guilty' and a judgment to that effect was entered thereon. No appeal has been taken from that judgment finding Brozovich 'not guilty'. The case was submitted to the jury as to all the defendants, their motions for directed verdicts at the close of the plaintiff's evidence and of all the evidence being denied. The verdict was not guilty as to the defendant Brozovich, and guilty as to the defendants Kubinski. A post trial motion which consisted of a motion for judgment for the defendants notwithstanding the verdict was filed by these defendants, and was denied. The notice of appeal asks the judgment be reversed and judgment be entered for the defendants or the cause be remanded with such instructions.

It is charged in the amended complaint that the plaintiff, as a laborer, was engaged July 3, 1958, in the removal and destruction of a certain building or structure located on the northwest corner of Joliet and Van Buren Streets in the City of Joliet; the defendants, John Kubinski & Sons, were engaged as subcontractors in the destruction and removal of the walls of said building; said defendants owned a certain hoist or mechanical contrivance which was being operated by their agent, servant and employee, the defendant Anton Brozovich; the hoist or mechanical contrivance was being used as a scaffold or working hoist and the plaintiff was working thereon; there was then in effect the Structural Work Act, Ch. 48 Ill.Rev.Stats., 1957, pars. 60-69, certain applicable language thereof being alleged; it was the duty of the defendants to place and operate the scaffold or working hoist or mechanical contrivance in a safe, suitable, and proper manner so as to afford proper and adequate protection to the plaintiff; the defendants were guilty of one or more of the following wilful violations or omissions: wilfully failed to place, and operate said hoist or mechanical contrivance or scaffold in a safe, suitable and proper manner, and wilfully failed to provide a safe, suitable and proper hoist or mechanical contrivance or scaffold to work on, and wilfully provided an unsafe, unsuitable, and improper hoist or mechanical contrivance or scaffold for the plaintiff to work from, and wilfully placed and operated the hoist or mechanical contrivance or scaffold in an unsafe, unsuitable, and improper manner; and as a direct and proximate result of one or more of such wilful violations or omissions, the plaintiff was caused to fall from the hoist or mechanical contrivance or scaffold to the ground and suffered serious injuries.

The answer of the defendants, John Kubinski & Sons, admitted the plaintiff's work, and that they were engaged as a subcontractor in the removal and destruction of the walls of said building; denied they owned a hoist, but admitted that they owned a certain Drott Loader which was being operated by the defendant Anton Brozovich on behalf of the plaintiff, but not on behalf of and in the course of operation or business of John Kubinski & Sons; denied it was used as a hoist or mechanical contrivance and that the plaintiff was working thereon; denied that the Structural Work Act, Ch. 48 Ill.Rev.Stats., 1957, pars. 60-69, has any application to the facts and circumstances, though admitting it was in effect; and they denied all the allegations as to their alleged duty, violations of duty, direct and proximate result, and injuries.

The defendants-appellants contend that there was a total failure to prove that the defendants wilfully violated or failed to comply with any provisions of the Structural Work Act; the Court should have directed a verdict for these defendants or entered a judgment in their favor notwithstanding the verdict; the defendants did not have charge of the work being performed at the time of the accident; the plaintiff's injuries were not caused by a scaffold, hoist or mechanical contrivance within the meaning of the Structural Work Act, but rather by the work itself; the Drott skid shovel was not a scaffold, hoist, or mechanical contrivance within the Act; there is no proof that a wilful violation of the Act by these defendants proximately caused the plaintiff's injuries; the injuries proximately resulted from an accident caused by the breaking of a pipe joint with a sledge hammer by the plaintiff, the pipe and hammer being owned by his employer; the shovel was not defective in any manner; the shovel was erected and constructed by Drott Manufacturing Co., not by the defendants; and the verdict of not guilty and judgment in favor of the defendant Anton Brozovich, their employee, is res judicata and a complete bar to recovery by the plaintiff against these defendants because the liability of these defendants is based upon the doctrine of respondeat superior.

The plaintiff-appellee's theory is that the verdict of guilty against these defendants is not inconsistent with the verdict of not guilty as to the defendant Brozovich, their employee; the defendants' violation of the Structural Work Act does not follow from or is not based upon the theory of respondeat superior, but rests on their own fault, independent of their servant, in permitting the machine to be used as a lifting platform from which the plaintiff fell; the gist of the action is not a defect in the machine as a debris remover but in its unsafe use as a temporary scaffold, for which purpose it was dangerous; the defendants are liable under this Act because they knew and approved of the practice of lifting men in this loader as a mobile platform, for which use it was not safe; whether these defendants furnished an unsafe, unsuitable, and improper scaffold, whether such proximately caused the injuries, and whether the credibility of the plaintiff or other witnesses was affected were all issues for the jury; and there is sufficient competent and credible evidence to support the verdict and there is no reversible error.

It appears from the evidence that the plaintiff, Albert Oldham, was employed on the day in question, July 3, 1958, and prior thereto by William Wolfe, d/b/a Joliet House Wrecking Co., as a laborer. A contract had been entered into between William Wolfe and the defendants, John Kubinski & Sons, on March 7, 1958, whereby these defendants agreed to furnish all equipment and operators to complete the removal of walls and dispose of debris, and level property as per plans and specifications by the City of Joliet, at the Northwest Corner of Joliet and Van Buren Streets, in a substantial and workmanlike manner, for which William Wolfe agreed to pay those defendants $3300.00. Anton Brozovich was in the employment of the defendants, John Kubinski & Sons, and was operating a Drott loader or shovel in connection with the demolition of the buildings. Leonard Kubinski, a member of the partnership doing business as John Kubinski & Sons, testified that the defendant partnership owned an International 7-d, 14 Crawler tractor with top skid shovel attached to it, and that Anton Brozovich was employed by the defendant partnership, and operated the tractor and bucket or shovel attached thereto. The plaintiff, Albert Oldham, got into the bucket or shovel with a sledge hammer belonging to Mr. Wolfe in order to be raised by Brozovich so that he could break the coupling on a couple of 20'-21' lengths of pipe that were attached to the side of a beam of the building by metal hangers, the right end being loose or unconnected. By being so raised up he could break the coupling and the pipe would fall to the ground. The plaintiff had broken pipe for Mr. Wolfe before. A truck driver for Mr. Wolfe was around to pick up iron, the iron being some of this pipe, to haul to Mr. Wolfe's place. It was Mr. Wolfe's pipe. The bucket of this shovel, with the plaintiff in it, was stopped when it was about 12 feet above the floor. Shortly afterwards the plaintiff struck with the sledge hammer the coupling or joint of two lengths of pipe which were attached to the beam, and after the coupling broke, one length of pipe fell, and simultaneously therewith or shortly thereafter the plaintiff himself fell to the floor and sustained serious injuries. Leonard Kubinski said he did not know whether Brozovich had ever raised Oldham in the bucket before, but he said he knew their men had raised men up in the bucket on this and other machines before.

This Drott loader shovel was attached to the front end of the defendants' International Harvester crawler tractor. On the fore part of the loader is a lift arm bucket or shovel, which is manufactured by the Drott Manufacturing Co. The bucket alone weighs 1,620 pounds. The machine was primarily an excavating, loading, or stock piling machine for moving earth, loose construction material, or any inner type of material. It is used for back filling excavations, and for use during demolition, removing debris, brush, etc., and in breaking concrete, roads, etc., and rough grading. The length of the bucket (from front to back) is between three and four feet, it is eight feet in width (across), and the depth is twenty-six to twenty-eight inches at the sides and...