Ziraldo v. W.J. Lynch Co.

• Decision Date: 04 February 1937
• Docket Number: No. 23726.,23726.
• Citation: 365 Ill. 197,6 N.E.2d 125
• Parties: ZIRALDO v. W. J. LYNCH CO.
• Court: Illinois Supreme Court

365 Ill. 197

6 N.E.2d 125

ZIRALDO

v.W. J. LYNCH CO.

No. 23726.

Supreme Court of Illinois.

Dec. 16, 1936.

As Modified on Denial of Rehearing Feb. 4, 1937.

Suit by Elio Ziraldo against the W. J. Lynch Company. Judgment for the plaintiff was reversed by the Appellate Court [1 N.E.(2d) 565, 284 Ill.App. 9], and the plaintiff appeals.

Judgment of the Appellate Court reversed and judgment of the superior court affirmed.Appeal from Third Branch Appellate Court, First District, on Appeal from Superior Court, Cook County; Peter H. Schwaba, Judge.

Cassels, Potter & Bentley, of Chicago (Ralph F. Potter, George C. Bunge, Leslie H. Vogel, and Richard H. Merrick, all of Chicago, of counsel), for appellant.

Robertson, Crowe & Spence, of Chicago (Eugene P. Kealy and Henry L. McIntyre, both of Chicago, of counsel), for appellee.

JONES, Justice.

Elio Ziraldo recovered a verdict and judgment in the superior court of Cook county against the W. J. Lynch Company for $5,000 damages on account of accidental injuries sustained while engaged in construction work at the DePaul Hospital, in the city of St. Louis, Mo. The Appellate Court for the First District reversed the judgment without remanding the cause, on the ground that the testimony showed plaintiff was guilty of contributory negligence and therefore the trial court erred in refusing a peremptory instruction for defendant. The cause is here by leave to appeal.

Defendant was the general contractor for the construction of the hospital. Plaintiff was an employee of a subcontractor for the installation of the tile and mosaic work. Two elevators for delivering materials and for other construction purposes were located in a temporary double-elevator shaft about eight feet south of the south wall of the building. The two shafts were separated by a fence-like partition. At each floor of the building there was a platform connecting the building with the elevator shafts. The shafts had hinged lattice gates seven or eight feet high, facing the building at each platform. The gates of the east shaft swung to the east and those of the west shaft swung to the west. A bar was provided at each gate to keep it closed. Two of defendant's employees were charged with the duty of keeping the elevators in condition and seeing that the gates were kept closed. The double shaft was about fourteen feet long east and west and about eight feet wide. The platform was slightly longer than the shaft. The elevators or hoists were operated by power. Workmen were not permitted to be carried. Plaintiff had been working in the building about two and one-half weeks. During that time he had seen the elevators in operation but had never used either of them. Shortly prior to the accident he was using a grinding machine on the third floor. It weighed about 1,000 pounds. By direction of his boss he was taking the machine to the west elevator for hoisting to the fourth floor. The corridor from which the machine was brought opened onto the platform in front of the elevators. Two other workmen assisted him in getting it onto the platform. They were pushing and Ziraldo was pulling the machine toward the west elevator, which was standing at the platform. During this time the gate to the east elevator stood open. When they got the machine close to the elevator, the men who were assisting Ziraldo went back to their work, leaving Ziraldo to place the machine on the elevator. As he was attempting to do this, he leaned into the east shaft, where he was struck by a descending elevator, thrown to the ground and permanently injured. The accident occurred about 11:30 a. m. The east elevator had been in use all morning hoisting sand and gravel to the ninth floor. The gates were open most of the time. If the east gate had been closed, the accident could not have happened.

Whether a plaintiff was guilty of contributory negligence is ordinarily a question of fact for the jury to decide under proper instructions. It becomes a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence. Thomas v. Buchanan, 357 Ill. 270, 192 N.E. 215;Mueller v. Phelps, 252 Ill. 630, 97 N.E. 228;O'Rourke v. Sproul, 241 Ill. 576, 89 N.E. 663. A motion to direct a verdict for the defendant preserves for review only a question of law whether from the evidence in favor of the plaintiff, standing alone and when considered to be true, together with the inferences which may legitimately be drawn therefrom, the jury might reasonably have found for the plaintiff. Brophy v. Illinois Steel Co., 242 Ill. 55, 89 N.E. 684; City of Chicago v. Jarvis, 226 Ill. 614, 80 N.E. 1079. We cannot weigh the evidence to determine, as a matter of fact, whether the plaintiff was guilty of contributory negligence (Dukeman v. Cleveland, Cincinnati, Chicago & St....