Wyler v. Lilly Varnish Co.

• Decision Date: 04 December 1969
• Docket Number: No. 2,No. 867A41,867A41,2
• Parties: Donald WYLER, Appellant, v. LILLY VARNISH CO., Inc., Brad Snodgrass, Inc., Freyn Bros., Inc., C. WilburFoster, George S. Hawke and Charles E. Nourse, d/b/a Foster Engineering Co.,Ltd., Appellees
• Court: Indiana Appellate Court

Page 824

252 N.E.2d 824

146 Ind.App. 91

Donald WYLER, Appellant, v. LILLY VARNISH CO., Inc., Brad Snodgrass, Inc., Freyn Bros.,

Inc., C. WilburFoster, George S. Hawke and Charles

E. Nourse, d/b/a Foster Engineering

Co.,Ltd., Appellees.

No. 867A41.

Appellate Court of Indiana, Division No. 2.

Dec. 4, 1969.

Harry A. Wilson, Jr., Howard J. DeTrude, Jr., Indianapolis, for appellant; Kightlinger, Young, Gray & Hudson, Indianapolis, of counsel.

Emerson, Boyd, Locke, Reynolds, Boyd & Weisell, Tony Foster, Bingham, Summers, Welsh & Spilman, James E. Rocap, Jr., Rocap, Rocap, Reese & Young, Indianapolis, for appellees.

WHITE, Judge.

Appellant, an employee of Citizens Gas & Coke Utility, fell and was injured on the premises of appellee Lilly Vernish Co., Inc., 666 South California Street, Indianapolis, on January 17, 1963. He had gone there to install a gas meter in the basement of a one-story office building then under construction, but nearing completion. This is an appeal from a judgment on a jury's verdict denying him damages for his injuries.

After entering the building and making some measurements in the basement, appellant and his helper climbed the stairs to the first floor and walked out the door through which they had entered. The door opened onto a porch, stopp, or platform on the east side of the building. At that time there was no railing around any part of the platform. At the north end of the platform there were steps leading to the ground. At the south end of the platform there was an air well five feet wide (east to west), eight feet long (north to south) and ten to thirteen feet deep. Two wooden planks (2 10's) were lying over the opening into this well, with one end of the planks resting on the platform at the north end of the well and the other end of the planks resting on the ground at the south end of the well. The planks were covered by a sheet of plastic called Visqueen. There were no railings or barricades or warning signs near the well.

Appellant testified that as he first came onto the premises and approached the building, he saw this Visqueen covering the platform and extending down from the platform to the ground over what he thought was a ramp at the south end of the porch. He also saw the steps at the north end of the platform but he and his helper did not ascend to the platform by either the steps or the ramp. They stepped directly from the ground onto the east side of the platform. Appellant testified that when they left the building 'I thought I would take it easy on my feet instead of jumping off of the platform there--and go down the ramp. * * * I took the way closeat to my truck sir.' The Visqueen was dirty and he did not see or know that the air well was under it. As he stepped onto the 'ramp' he had the sensation of falling and landed at the bottom of the air well, sustaining severe injuries.

An oral stipulation at the trial identified appellee LILLY VARNISH CO., Inc., as the owner, FOSTER ENGINEERING CO. (i.e., the partners doing business by that name) as the General Contractor, FREYN BROS., Inc., as sub-contractor for mechanical work, and BRAD SNODGRASS, Inc., as sub-contractor for heating and air conditioning. All four were made defendants in appellant's suit below for damages for his injuries thus sustained.

At the time of the accident the construction of this air well had been completed except for the permanent covering (a metal grille) which was later placed on top of the opening. The purpose of this air shaft was to provide a fresh air inlet to the building's air conditioning and heating system. When the system was completed and put into operation, the air descending into the well would pass through louvers in the basement wall into the furnace. Except for these louvers, the walls of the well were of concrete block. The floor was of concrete poured around a drain previously set there by appellee Freyn Bros. The floor had been in about one month at the time of the accident and the walls had been there for an indefinite time. The louvers, installed by appellee Brad Snodgrass, may have been put in as late as the day of the accident or as early as two weeks before that. They formed approximately the whole west wall (or building side) of the air well and when their installation was complete (as it was at the time of the accident) the air well was thereby closed off from the basement for all purposes except the intake of air. No light penetrated from the basement to the air well or from the air well to the basement.

While evidence as to who dug the hole which became the air well and who poured the cement floor and who laid the cement block walls was not as direct and clear as might be desired, it may fairly be inferred that such work was done by the general contractor, appellee Foster Engineering. Except for the time the air well was covered by the scaffolding used by the brick masons in building the exterior wall of the building, the air well was used by the employees of all appellees (except, perhaps, the owner, Lilly Varnish) as a way of entry to a exit from the basement, by means of a ladder placed in the well. Tools, materials and equipment were also taken in and out through this opening.

The purpose of covering the hole with the plastic (Visqueen) was to make the building more comfortable for the workmen by impeding the flow of cold air into the basement. Whether the planks were there merely to support the Visqueen or to prevent people from falling into the well is not clear. The opening being approximately five feet in width, the two planks there the day of the accident obviously could not serve the latter purpose. There was evidence that more planks had covered the opening at other times, but there was no evidence as to what practice was followed with respect to removal and replacement of planks when anyone used the ladder to enter or leave the basement.

The evidence was uncontroverted that the job superintendent and other general contractor's employees working under his direction placed the planks and Visqueen over the well opening in the first instance and that he acknowledged responsibility for 'covering and protecting' the opening.

The evidence was in conflict as to whether the Visqueen also extended over the platform. Also in conflict was the degree of opacity of the Visqueen, particularly as to whether it was dirty. No witness, however testified that the air well could be seen by looking down through the Visqueen; but it was left uncertain as to whether that was due to opacity of the Visqueen or to want of light in the hole. There was some conflict as to the extent of the sagging of the plastic and as to what such sagging would indicate or should have indicated to persons, such as appellant, when they contemplated stepping onto it.

Appellant's complaint alleges that the owner, appellee LILLY VARNISH CO., Inc., had employed appellees C. Wilbur Foster, George S. Hawke and Charles E. Nourse, d/b/a FOSTER ENGINEERING CO., Ltd. (elsewhere herein referred to as 'Foster' or 'Foster Engineering') to supervise the erection of the building, which work Foster was doing at the time of the accident. The complaint also alleged that appellee FREYN BROS., Inc., and BRAD SNODGRASS, Inc., were employed by Foster 'to assist and construct the building'. It further alleged:

'(8) That at said time these defendants, (being all of the appellees) and each of them, acting by and through their said employees, had constructed an air intake hole on the east side of the newly constructed building approximately midway between the north and south end of said building and immediately adjacent to a doorway; and that further, the defendants, without knowledge on the part of the plaintiff, but well known to themselves, after the excavation of said hole, covered said hole and doorway entrance with an opaque sheeting which rendered the area immediately beneath the sheeting invisible.

'(9) That as a part of his duties in the installation of said commercial meter, the plaintiff was required to and did in fact enter the construction site and while in the process of leaving said building by the doorway on the east side, stepped upon the opaque material and fell a distance of approximately thirteen feet, landing on a concrete floor and sustaining serious injuries as a direct and proximate result thereof, as more particularly hereinafter alleged.

'(10) That the defendants, and each of them, were guilty of the following acts and omissions of negligence, to-wit:

'(a) That the defendants placed an opaque covering across the doorway and area immediately adjacent thereto and invited its use when they knew or should have known that a person using said doorway would likely suffer serious injury as a result of said action;

'(b) That the defendant failed and neglected to place any signs or any warnings of any nature around the doorway and area immediately adjacent thereto to advise or warn other workmen, who were working in the vicinity thereof and using said doorway, that an excavation had been covered up by the opaque material and that the use of said entrance and exitway would likely result in injury.

'(c) That the defendants negligently failed to guard or barricade said opening and excavation when they knew that said entranceway was being utilized by other workmen and when they knew or should have known that the failure to guard or barricade the covered excavation was likely to result in serious personal injuries.

'(d) That the defendants, after covering the excavation and hole with opaque sheeting, negligently left said condition to exist for a considerable period of time when they knew or should have known that other workmen would be working in the vicinity of the excavation and that said action was likely to cause injuries.

'(e) That the defendants failed and neglected to warn or advise the plaintiff of the existence of said excavation and in fact covered the excavation and kept it...