Spurr v. LaSALLE CONSTRUCTION COMPANY

• Decision Date: 08 November 1967
• Docket Number: No. 15148-15150.,15148-15150.
• Citation: 385 F.2d 322
• Parties: Edward Raymond SPURR, Plaintiff-Appellee, v. LaSALLE CONSTRUCTION COMPANY, Defendant-Appellant. Edward Raymond SPURR, Plaintiff-Cross-Appellant, v. ACME STEEL COMPANY, LaSalle Construction Company, and U.S. Steel Corporation, Defendants-Cross-Appellees. ACME STEEL COMPANY, LaSalle Construction Co., and U.S. Steel Corporation, Third-Party, Plaintiffs-Appellees, v. S.J. REYNOLDS COMPANY, Inc., Third-Party, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

385 F.2d 322 (1967)

Edward Raymond SPURR, Plaintiff-Appellee, v. LaSALLE CONSTRUCTION COMPANY, Defendant-Appellant.

Edward Raymond SPURR, Plaintiff-Cross-Appellant, v. ACME STEEL COMPANY, LaSalle Construction Company, and U.S. Steel Corporation, Defendants-Cross-Appellees.

ACME STEEL COMPANY, LaSalle Construction Co., and U.S. Steel Corporation, Third-Party, Plaintiffs-Appellees, v. S.J. REYNOLDS COMPANY, Inc., Third-Party, Defendant-Appellant.

Nos. 15148-15150.

United States Court of Appeals Seventh Circuit.

September 13, 1967.

On Denial of Rehearing November 8, 1967.

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Harold W. Huff, Herbert C. Loth, Jr., Richard J. Kissel, Gene A. Knorr, Chicago, Ill., for LaSalle Construction Co.

Albert F. Manion, L. H. Vogel, Chicago, Ill., Bruce Parkhill, John H. Bishop, John M. Falasz, Chicago, Ill., for S. J. Reynolds Co.

Harlan L. Hackbert, Chicago, Ill., Hackbert, Rooks, Pitts, Fullager & Poust, Chicago, Ill., of counsel, Jeremiah Marsh, Chicago, Ill., for appellee American Bridge Division.

William J. McKenna, Barry L. Kroll, John C. Bartler, Chicago, Ill., of counsel, Jacobs & McKenna, Chicago, Ill., for third-party plaintiff-appellee Acme Steel Co.

Philip H. Corboy, William Theodorous, William J. Harte, Chicago, Ill., for Edward Raymond Spurr.

Before KILEY, FAIRCHILD, and CUMMINGS, Circuit Judges.

FAIRCHILD, Circuit Judge.

Action for damages for personal injuries.¹ Plaintiff Edward Spurr was at work in the construction of a large steel plant in Illinois on April 24, 1959. He fell backwards into an open pit and was injured. He brought action against the owner of the plant, Acme Steel Company, and a number of contractors, including LaSalle Construction Company, and American Bridge Division of United States Steel Corporation. Acme and LaSalle filed third-party complaints against Spurr's employer, S. J. Reynolds Co., seeking indemnity.

In the principal action, the jury found in favor of Spurr and against LaSalle and American Bridge in the amount of $250,000, but exonerated Acme. The court, however, ordered judgment in favor of American Bridge, notwithstanding the verdict. The court also determined as a matter of law that Reynolds must reimburse LaSalle for payment of Spurr's judgment and must reimburse both LaSalle and Acme for expense incurred in defending against the claim of plaintiff. LaSalle, Spurr and Reynolds have appealed from portions of the judgments adverse to them.

1. Spurr's alleged contributory negligence. Spurr was a pipefitter. He and Olson, another Reynolds employee, were directed to dismantle a "strainer" in an oxygen line. The strainer was mounted on the north side of a column, some five feet above the ground surface which lay north of the column and around it to the east and west. Immediately south of the column was the north edge of a very large open pit 13-14 feet deep. The concrete wall along the north side of the pit extended above the ground level sufficiently to be described as a curbing, but there was no other barricade.

Olson described Spurr's position shortly before he fell, but Olson was busy preparing a new fitting and was not observing Spurr at the moment he lost his balance. Spurr has no memory of the event. A witness who did testify that he saw Spurr fall, and described Spurr in a position and maneuver which virtually invited disaster, was thoroughly impeached, and the jury could properly have rejected his testimony. There were no other eye witnesses.

The testimony most favorable to Spurr, and the inferences which might reasonably be drawn would support the following view of the occurrence: Spurr's co-worker, Olson, was standing north of the column and strainer. Spurr was standing west of the column facing north, pulling southward on a 24-inch wrench. He was 12 to 18 inches from the edge of the pit. His wrench slipped; he lost his balance and fell backwards into the pit. Had a barricade been present it would probably have helped him regain his balance sufficiently to avoid the fall.

LaSalle contends that Spurr was guilty of contributory negligence as a matter of law, principally because he chose to work with his back to the open pit and to pull his wrench toward the pit. LaSalle points to the testimony of Tompkins, another Reynolds pipefitter, that one man could do the job by standing north of the column, facing south. He would pull two wrenches toward him, rotating one pipe or fitting clockwise by pulling the wrench in his right hand, and the other counter-clockwise by the wrench in his left. He did suggest it could properly be done by standing to the west, although his description at that point was not clear. One could not stand to the east because of an obstruction on that side. Spurr was using only one wrench and was attempting to produce a counter-clockwise rotation by pulling southerly. Olson was occupying the position to the north where he could have produced an opposing clockwise rotation with the second wrench if that became necessary.

Events proved, of course, that danger lurked in Spurr's position. But in our view, the jury could properly find that Spurr did not make an unreasonably dangerous choice among the possible methods of performing his work.

2. LaSalle's negligence. The project was a large one. It had been under way for a year before the accident. There were about 50 subcontractors and about 1,000 workers. LaSalle had a contract with Acme by which LaSalle undertook to complete, either by itself or through subcontractors, all construction work assigned to it. Acme reserved the right to make direct contracts with others, and did so. Reynolds, Spurr's employer, was a subcontractor of LaSalle. American Bridge had a direct contract with Acme.

LaSalle contends it had no responsibility to do more than it did with respect to barricading the pit.

The plans called for a chain-barrier around the pit as part of the finished structure. Sleeves were to be imbedded in the top of the pit wall, and pipes were to be placed in the sleeves. A chain would run from pipe to pipe. The chain-barrier could be removed when operations in the plant required. LaSalle had built the pit wall and installed the sleeves. There was considerable contention whether the installation of the chain-barrier was the contractual responsibility of LaSalle or American Bridge. There was testimony, indeed, that the chain-barrier had been installed by American Bridge long before the accident. It was not in place at the time of the accident, and if the pipes and chain had been there and then removed, no one claimed to know where they were.

But we think the verdict can be sustained against LaSalle on the proposition that it was the general contractor and that ordinary care required the barricading of the pit for the protection of persons lawfully on the premises.² This responsibility is quite apart from the contractual responsibility for the installation of a chain-barrier as part of the finished structure.

There was an issue at the trial whether Acme or LaSalle exercised the type of control over the project which would impose responsibility for maintenance of reasonably safe conditions. The court instructed the jury that they were to determine whether LaSalle exercised general control and superintendence, and that if so it owed a duty to employees of a subcontractor to provide a reasonably safe place to work.

Under the contract between LaSalle and Acme, Acme did reserve the right to contract with others for part of the work. Yet LaSalle undertook to coordinate all work directly contracted for with the work it agreed to perform or subcontract. Although there was evidence of considerable activity by representatives of Acme at the construction site, the jury was satisfied that Acme did not exercise general control of the work. We think the evidence supports the finding that LaSalle had such control and the resulting responsibility for maintenance of a reasonably safe place to work.

There was evidence that it is the custom of LaSalle and building contractors generally to barricade pits in order to protect construction workers. The jury could find that LaSalle was negligent in failing to construct and maintain a barricade at the pit.

LaSalle contends that the absence of a barricade could not be deemed a proximate cause of Spurr's fall. It is true that the existence of the pit was obvious and that the additional warning which a barricade would have supplied would not have changed the situation. As previously stated, however, the jury could reasonably have believed that a barricade would have helped Spurr regain his balance sufficiently to avoid the fall.

3. Alleged Negligence of American Bridge. Plaintiff argues that the evidence presented a jury question whether American Bridge was negligent, and that he is entitled to judgment against American Bridge, on the verdict. The theory is that American Bridge had agreed to erect the chain-barrier which was to be part of the finished construction. To succeed, plaintiff had to prove that erection of the chain-barrier was part of the work American Bridge agreed to do and that performance of this part of the contract was due before the accident.

In our opinion the evidence does not support those propositions.

The only reference to the chain-barrier in any document pertaining to the construction indicates that LaSalle was to install it. Plaintiff has not pointed to any provision which is even open to the construction that American Bridge was to erect this barrier. He relies on testimony by an officer of LaSalle that "the steel that went above the foundations was the responsibility, as I understand it, of American Bridge." A motion was made to strike this conclusion, but only partially granted. The record shows no foundation for the statement and it is not competent evidence that American Bridge had agreed to erect the chain-barrier. The other testimony relied on was to the effect that the...