*1 identified; no victims, Kyser, two of the Stevens and Miss at the checkout opportunity to view tire man robbed Miss Kyser who counter; clothing to the disagreed that all three of the victims defendant was first two asser- wearing robbery. the time of the third, al- tions have no foundation in the record. As to absolutely such dis- though the victims did defendant’s disagree clothing, identification crepancy positive of their otherwise light —in defendant —does not raise a reasonable his participation doubt as to Moscatello, the offense. 16. People v. 114 Ill.App.2d record,
We find no reversible evidence supports error in the the verdict beyond reasonable doubt. affirmed.
Judgment HAYES,
LEIGHTON and concur. JJ., Tenenbaum, v. Defend Chicago, Plaintiff-Appellee, Julius ant-Appellant truct Counterplaintiff-Appellee—(O’Neil Cons Company, ion Defendant-Appellant Counterdefendant-Appel lant. ) 55216;
(No.
First District (4th Division) May 1973.
EGAN, J., concurring. specially
ADESKO, dissenting. J., French, French, & of of Howard for Chicago, appellant
Richard G. of City Chicago. Lord, Bissell & Dempsey, Valentine Thomas W.
Richard C. Brook, for O’Neil Construction Chicago, appellant Company. Rizzi, Chicago, (Dom counsel,) appellee Phillips, G. J. John Tenenbaum. Julius delivered the of the court: opinion GOLDBERG Mr. JUSTICE Tenenbaum injuries action for (plaintiff) brought personal Julius against the City Company Chicago O’Neil Construction (City) and At (O’Neil). occurrence, time employed had been Link Belt Company action (Link third-party Belt). filed City Link against Belt in- seeking also counterclaim O’Neil against demnity from both. Link and the Belt assumed defense of the City third-party action against was dismissed. trial,
After verdict O’Neil was returned against City $150,000. amount of The court directed a favor verdict City on its counterclaim against against O’Neil and entered judgment O’Neil for the full amount of the O’Neil both recovery. *6 appeal.
Plaintiff’s original O’Neil, August complaint against filed City and 5, 1964, one contained count and on the sought recovery theory negli gence. 15, On court, with leave of filed an January plaintiff amended complaint of two counts count against both defendants. One alleged violations of the Structural Work Act of Illinois. Rev. Stat. (Ill. ch. par. 69). The other a ordi alleged City violations of 60— nance which incorрorated the of Chi terms of the statute. Code City cago, ch. sec. etc.
The points raised here O’Neil by fall into O’Neil categories. urges two that the judgment be reversed because the Act does Structural Work not as a apply law; matter of there was no that proof O’Neil violated this Act and there was no evidence that O’Neil had of the work charge as required by the statute. The second urges of contentions category reversal of the judgment and remandment of the cause for a trial new because of trial errors: in the to the instructions combined with permitting plaintiff’s counsel to read City ordinance the jury; to re- fusal of the trial court to permit proper attempt impeachment at O’Neil and by final prejudicial argument by plaintiff’s counsel. O’Neil also urges that in favor of the judgment on its counter- City claim for indemnity should be reversed as a matter of law. brief,
In its separate counsel for the City urge reversal of the judg- ment as a matter lawof because the Structural Work Act does not ap- in The also O’Neil ply. City joins trial urging court erred in of the permitting commingling Structural Work Act of Illinois with ordinances of the City provisions of the contract between the parties permitting plaintiff’s counsel to read ordinances to the jury. also to City urges, contrary O’Neil, the position taken by the court entered properly favor of the judgment City against O’Neil based indemnity contract between them. upon
Plaintiff maintains that here; tire Structural Work Act is applicable vio- alleged applicable the defense of contributory negligence O’Neil; found jury properly lations ordinance City violated wilfully O’Neil and that O’Neil charge work errors, responds Structural Work Act. As trial regards witness for O’Neil of a court did not err cross-examination permitting Illinois; if such error State of health and rules concerning safety not error it was exist, object; did it was waived failure of O’Neil to ordinance provisions counsel to read permit plaintiff’s incorporated also of a of Accident Prevention which were manual contract; attempted respect the construction there was no error and, argument; closing in the instractions or impeachment; no error of the trial. the outcome error which in affected any way no finally, con- facts. The City material following here shows evidence plant water treatment underground an tracted with O’Neil erect a con- primarily consisted facilities. The work existing addition which general contractors of several crete structure. O’Neil was one engaged O’Neil also City. with the agreements entered into written labor foreman as a employed Plaintiff was number of subcontractors. was the first O’Neil contractor. general Link Belt which was also Link Belt on the concrete structure. commence work contractor to re- which scraping equipment certain chemical mixing to install for this bases erecting work in of some concrete quired performance purpose. referred to as Basin No. of the work portion at injured
Plaintiff was level ground The roof was of three levels. 4. basin consisted This Seventeen feet below thereon. resting penthouse and contained a *7 this feet below to 18 floor. Seventeen an intermediate level was ground in the Included was the concrete floor basement. level intermediate or regulate to check designed area so-called baffle the structure was a concrete in the openings this area there water. Above the flow of level, there was an intermediate On the at of the levels. floors each extended width. This opening in nine feet more than opening slightly ma- equipment hoisting used for and had been floors all through levels. upper the lower and terials between men, Link of his also employed sent two 8, 1964, plaintiff On June have been and wood which debris to remove Belt, the area into area was then checked the This floor. intermediate the left on there. Plaintiff necessаry further work that told plaintiff had if his personnel properly to determine himself the area entered area to the west consisted of a the so-called Part of the work. performed when work was flow the finished the water would which through maze easterly in in an Plaintiff floor operation. walked on the intermediate went direction maze. As he through portion progressed of this he wall, that around one He testified light. he found that there was no He there- tried turn on not operate. bulbs which did light temporary continued, upon with the use of a flashlight. level,
As he came the baffle chamber on the intermediate toward there something hit his arm. he this point, As had toward progressed had the been various material wafl. types against of wood and other the searching He his on dropped and it went out. He started flashlight floor in the with his hands the As searched feeling fight. for dark, stumbled, he As he felt of a ladder tripped. edge he the balance, He rungs. regain testified that the ladder trying shifted with him and bit he could feel as it slid a little rungs along the with him. He fell aper- then into Plaintiff space. through had fallen ture and to the concrete floor of the basement below. some 17 18 feet The nature and are not severity injuries disputed.
There are various conflicts There is evidence. evidence the hole through which feU been used ma- had for hoisting terials and equipment connection is evidence with the work. There that, occurrence, at the time of hole had been closed at level, ground Also, which constituted roof of project. it appears that this portion of hole had preceding remained open during week and was closed before shortly was no mishap occurred. There barricade in front the hole at time occurrence. There also that O’Neil had testimony its work in completed this area prior occurrence; although to this there is evidence that O’Neil had been end, on the level of the working structure at the east top above wherе occurred, the accident and also at west end. The evidence shows Belt, O’Neil, as well Link used the had hole for question O’Neil hoisting produced evidence that purposes. it had its removed from the area and intermediate equipment poured concrete roof over the entire grade (the roof) level baffle area some three months before occurrence. regards fighting day question,
As the area contained no permanent lighting designed it was provision be under water facility completed. when the O’Neil had established temporary but there is evidence it had fighting removed this area occurrence. Link prior had, however, Belt equipment provided by means temporary lighting electric cord and bulbs. Plaintiff testified that the area was dark and that these electric bulbs did not operate.
996 been ladder, had
As the there is evidence that regards stepladder used at the to between intermediate floor and job access permit had as O’Neil employees, basement level. Link Belt well as personnel, O’Neil at used the ladder the time the accident thereto. prior of none and that offered that it time had no ladders the area tire proof mishap of its tire area when the occurred. personnel actually using is However, there that the ladder used for access between testimony or level or 18 the basement and the intermediate area above some 17 was 20 shorter even There is that Link Belt used long. feet also evidence area and there ladders about six feet in its work in the eight length to Link is had to conflicting belonging evidence there been a ladder Belt between levels. of issue, first raised O’Neil and the is City, applicability language
the Structural Work This revolves about the Act. primarily ladders, hoists, cranes, scaffolds, stays, the statute which “All applies * * * or other mechanical contrivances for use supports * * * * * * * * *” and which erection structure “* * * constructed, so placed them to be erected requires limb adequate the life and give operated proper protection thereon, under or or or any person persons employed engaged passing * * 1971, 48, This 60.) same Rev. par. Stat. (Ill. ch. * “* * a liberal construction provide court committed strongly Act to workmen providing of the Structural Work attain purpose * * work place in extrahazardous safe operations Kalinich, 293, 290, 855, 260 53 v. (Navlyt aff'd requirement of a liberal construction Ill.2d and remedial has been from legislation law Illinois salutary Henry in Schultz Ericsson decision Ill. early day. to the present N.E. bar, case at which had through
In the fell opening equipment construction for during hoisting been used materials has level to another. It been held that a portion from one construction, created which is being edifice used permanent work, is within the In purview for the Act. support stay 39 Ill.2d 236 N.E .2d held Louis court Barenfanger, fell alleged which complaint place where he working structure stated a cause of action. permanent this case shows that he effect, using evidence in level, of tire intermediate which been used previously floor concrete activities, aas as a which he hoisting platform upon basis of his purview (See duties within the performing employment. *9 Spiezio 392, 407, 235 N.E.2d Co., v. Commonwealth Edison Ill.App.2d 91 the concluding Under this analysis, problem we find no concrete within floor from which fell was a plaintiff support scaffold requirements the of the Act.
Plaintiff There testified that a and feU. upon he ladder tripped this ladder evidence from which tiler the of fact could have found had been and down and a provided used as method of climbing up the alternative from intermediate only level from which fell. The plaintiff the method of or down the and going up between intermediate level floor, feet, basement a a vertical distance of which stairway 17 18 was more was than 350 this feet from fell. In view of where away plaintiff was testimony, plaintiff the Structural Act and protected by Work ladder should been and have and so as to placed give operated proper adequate and under protection any the life limb of person passing or by it.
This conclusion is In Karris amply by the authorities. supported Goldman, Ill.App.2d 254 was working upon plaintiff a as a scaffold plank bricklayer’s A mortar helper. plate placed mortar, the scaffold. In upon lifting the It stepped upon plaintiff plate. and caused tipped him to fall. A verdict and for judgment plaintiff were affirmed this court upon theory 85 at Ill.App.2d 90): (118
“It was a proper jury question to resolve whether the makeup and its platform dimension were enough sufficient and safe to accommodate and the plaintiff requisite and equipment, sufficient provide space upon which was to perform find, task of shoveling. instance, could for use jury of the motar plate, which was 3 ft. and between square weighed 20 and 30 with pounds portion thereof overhanging outer- part scaffold, most of the caused scaffold to insuffi- become cient, unsafe dangerous.” at There,
The case bar is stronger even than presence Karris. the mortar plate upon held it scaffold was to cause “to become in- sufficient, bar, unsafe and In the case at dangerous.” could find that the jury ladder accomplished the same result and made the floor as a (actually used scaffold) unsafe but also lad- dangerous der in and of itself is protected directly within the instrumentality purview Act.
The court in Karris Ericsson, cited and relied Schultz v. upon 264 Ill. 156, There, N.E. 236. runway for used wheelbarrows was cluttered with piles of bricks. Plaintiff was injured when his wheelbarrow became entangled one proceeding direction. opposite The Supreme that the presence upon theory Court affirmed judgment * “* * insufficient, unsafe of the bricks made the scaffold Ill. dangerous” at (264 165). bar, the duty case
Quite analogously, here, the whether, trier of all the circumstances fact to decide under danger unsafe created an presencе placement of the ladder very from determine ous condition in violation of the Act. It is difficult to in place if floor or was record the ladder the concrete lying upon subbasement, above protruding between the intermediate level and the prevented plaintiff the floor of the The darkness former. event, submitted to knowing properly this. the situation was for their determination. We all authorities cited O’Neil and many have examined v. Cosmo facts is McGinnis City. case on the Perhaps closest 113, 252 & N.E.2d 56. National Bank Trust politan *10 a tenant find was We case here. Plaintiff inapplicable employed by name called a She her in which was remodeled. heard building being in the floor for emanate a hole made and sound seemed to leaned over opening, construction She walked over to purposes. was within court held that she not fell basement. This through The court properly pointed of Structural Work purview Act. in was to be installed out the dumbwaiter hoist which 113, Furthermore, 116.) did not 114 at aperture yet (See Ill.App.2d exist. but was em was not construction work plaintiff engaged there not within the by a tenant in an different ployed entirely occupation the Act. purview Johnson, v. at Thon 30 upon Ill.App.2d cites relies length There, built a
317, 174 400. some workmen form for purpose N.E.2d Plaintiff, electrician, a a floor. garage concrete slab in installing him to enable to reach a switchbox. The attempted to use this form form injuries he was This court held that injured. collapsed under the Structural Work This cited case were not compensable Act. # “* # on which ground something has been differentiated scaffold does not become scaffold is not intended use merely so it.” v. the intention of the Lester using (See because of party Crafton 56, Associates, & 114 at 252 52, N.E.2d Knight Ill.App.2d See 383.) B. Goldman, 85, 88, at 605. also Karris by Thon cited dissent in Louis also that was v. Baren We note 724, but of the 236 N.E.2d support at Ill.2d fanger, # # “* have been uniform that the courts appellate proposition Act exclude permanent the Structural Work interpretation their by the structure.” Since Louis was decided integral parts not, Supreme knowledge, relinquished Court in the court to our has or modified the taken position by majority opinion. are those and the City authorities cited O’Neil remaining An addi
usually cited and relied this character. upon proceedings tional of each is of the entire analysis consideration required. Upon record, we have bring concluded that there sufficient evidence to plaintiff within the O’Neil contends operation of the applicable statute. that the “real cause mishap dropping flashlight plaintiff the failure to work.” temporary lighting Certainly, however, the presence of the ladder was effective contributing cause of plaintiff’s injuries. or not the of this instru presence Whether floor, mentality made the concrete which upon performing unsafe or duty, an issue dangerous was of fact for determination by the jury. & (Walden 95, 99-100, Schillmoeller 111 Ill.App.2d Krofl It was for tire trial proper court to the motion deny of defendants for directed at verdict the close of plaintiff’s case and to submit the cause jury. reasons, addition to the above cogent there another quite but
independent equally potent theory which this case within brings the purview of the Structural Work Act. Count 2 of plaintiffs complaint as amended alleged failure of those charge of the work to safe supply barricades for the opening through which fell. The Act requires “* * * that where machines elevating or hoisting are apparatus used within building in the course of construction for the purpose materials be used lifting construction, in such the contractors or owners shaU cause the shafts or openings in each floor to be enclosed or fenced in all sides substantial barrier or railing least feet eight height.” (Ill. Rev. Stat. par. 66.) ch. The evidence here shows aperture through which plaintiff feU was not fenced or barricaded at the time. There is also evidence that at one time the hоle *11 had been protected type some of barricade by which was then removed. The evidence is as to conflicting when the of precisely hoisting materials through is, hole was The completed. however, evidence clear that had been hoisting process discontinued prior to the of day the mis statute, 66 of must, course, Section which hap. of con liberally favor, requires strued in the barricades elevating “[i]f machines * * or are used hoisting apparatus The statute does not say are that barricades when required only hoisting apparatus is actuaUy in use. The law does not use the present progressive tense are “being used” so as to require barriers while hoisting was in progress. The statute fails to specify when the precisely person charge of the work should remove the Under barriers. these circumstances, questions of and their the barricades
fact existed as to whether or not the removal of Claffy See the Act. absence when constituted a violation of plaintiff fell Co., 210, Chicago v. & 551. Dock 249 Ill. Canal N.E. completed or
Furthermore, actually even suspended if O’Neil had area in its work the particular as its hoisting activities well other not occurrence, alone would this fact some question days before Act. Work Structural under enable to avoid its necessarily liability in a liability legal evade their Those of the work not charge Gamm, 106 Ill. v. Pantaleo situation of this inaction. type (See mere by conflicting 116, of these 125-126,245 N.E.2d The App.2d 618.) presence trial court factual issues to the made submission of the cause jury not but only proper imperative. of violation
O’Neil next there a wilful urges that is no proof brief, violated the Act. As that O’Neil stated O’Neil’s plaintiff alleged adequate ladder; the Act by provide improperly failing placing used lighting failure to provide opening barricade over wilful hoisting violations were issue was whether these materials. 48, within the purview par. of the statute. Stat. (Ill. ch. Rev. used in courts “wilfully,” Our held that the word consistently context, is “wilful quite phrase different from the familiar wanton.” Actually, synonymous “knowing.” “wilful” is more concept essence of the to the Structural Work Act is not limited or intentional Liabil knowing disregard. misconduct even reckless or could have ity imposed dangerous where the existence conditions been discovered S. S. and E. Ill. Corp., reasonable care. Jones 94-95, 250 App.2d and cases therein cited. dangerous Whether or the unsafe and condition which caused plaintiff’s injuries defendants by should have been discovered exercise of reasonable was a of fact for the The trial care question jury. court did not err in this issue to submitting jury.
O’Neil that it had urges charge next that there no evidence of the work within the technical Act. meaning language In the cited case of Larson Commonwealth Edison frequently 33 Ill.2d Court out Supreme pointed usage words of” are words of common statutory “having charge other which not be defined understanding need explained than by use themselves. The court held these words of the words do not limit who have control or persons supervision liability duty control, work; and, that exercise further, supervision are not in themselves essential elements retention these rights, being charge. the contract between O’Neil and the case bar,
1001
or general
other prime
structure. All
provided for erection of the basic
of equipment
were
with the installation
contractors
concerned primarily
the structure.
within
facilities
the use thereof
machinery
for
and O’Neil
the City
There
contract between
long
was a
and complicated
of
with reference to performance
forth the
setting
rights
parties
that
this court
by
has
out
correctly pointed
work
It
been
by O’Neil.
“* * *
be deter
the owner can
of
contractor to
general
the duties
v.
of
charge
jobsite.” (O'Leary
minative of the issue who was in
of
12, 19,
contract provided
Siegel, 120
Furthermore, O’Neil had than employees more on the project other contractor. It was contractor for erection prime of the basic an Actually O’Neil testified that engineer structure. O’Neil was “in charge” question of the area in (Basin 4) when plaintiff No. injured. There is evidence that fully O’Neil not its work completed addition, at the area that time. In out pointed counsel for the by City, if the believed jury plaintiff’s testimony, it could con- reasonably clude O’Neil created an condition by unsafe the ladder in leaving or near unbarricaded hole. circumstances,
In view of all of these the determination as to whether O’Neil was of the work charge issue fact for Co., v. resolution by jury. 537-538, 35 Ill.2d (Kobus Formfit 633; Milwaukee, N.E.2d Gannon Chicago, v. St. Paul & Co., Ry. Pacific 305, 323, 22 Ill.2d N.E.2d Whether or not a 785.) is in person charge the work has been well described “the ultimate question” factual in cases under the Structural Work arising S. Act. S. & (See E. Jones Corp., 92-93, 250 with particular refer ence to citation Larson Commonwealth Edison 33 Ill.2d It the trial proper court to submit to the issue as to whether O’Neil was or was jury not charge of the work. The determination O’Neil was charge of the work was to the contrary weight manifest of the evidence. next to
We turn consideration of alleged trial urged errors be- error existence of reversible City. urges O’Neil and O’Neil cause refusal the trial court to permit attempted impeachment Plaintiff testified use of inconsistent statements. prior occur- direct he did not a clear examination that memory also 1965. rence when his was taken in He deposition for discovery *13 1970, trial, his was testified that in several weeks before recollection an of He further testified that hospital refreshed examination records. by ladder he tried to his balance and felt the of the edge tripped, regain stated, with slid a little bit him. then The ladder with He rungs. along into that all I On “And I remember remember.” falling space cross-examination, and, he he that he as stated over ladder tripped balance, the shifted him. He felt regain tried to his the ladder side rungs and rail ladder. the of as read to the deposition
It from appears discovery plaintiff, the then trial court out of the of that testified jury, plaintiff presence along, his feet for the He scraped feeling light. that he bent over added, all I he fell. He also “That is walking feeling kept stated that he On the he further walked three remember.” deposition, then flashlight after he his before he fell. He dropped four steps those three or four he did not feel steps, testified that directly during of him. The court sustained the an in front trial any sort of obstruction of this by use attempted impeachment deposition. to objection refreshed his from plaintiff had recollection It further that appeared the effect in his taken at This was to the history hospital. a statement “* * * fell losing that down sladder consciousness plaintiff [sic] ** When trial court refused cross-examina- hours few counsel for O’Neil that requested upon deposition, tion of plaintiff from the and made hospital history be to cross-examine he permitted The trial court refused cross- right of thereof. proof an offer and refused the offer of its history admission evidence. examine on shown, the of already presence this ladder was As we requires of case. It no aspect and most important a central litigant to establish should have right authority citation occurrence witness his use of credibility opposing by to test the relative to statеments material matters. Sommese (See inconsistent prior 263, 268-269, Inc., at 222 also Bros., 36 Ill.2d N.E.2d 468. See Moling v. 117-119, & T. 124 at 260 Corp., Ill.App.2d v. F. N.E.2d Dembinski that this the trial opinion ruling by our considered court was 359.) It is denied O’Neil a fair effectively and that opportunity erroneous witness, the sole occurrence his plaintiff, impeach attempting read, testimony given Fairly inconsistent statements. previous to the directly contradictory was on testimony his deposition plaintiff
1003 testified fact that changed by trial. This situation cannot fire refreshed been had that his recollection on direct examination testimony prior regarding plaintiffs information This hospital record. evaluating duty their to the jury performing indispensable fact. crucial most testimony upon regards as plaintiff’s credibility establish authorities regards hospital history, As recol refresh his memorandum to examine the right thus recollection independent from his lection and then testify 354-355, N.E.2d Hesser, 56 Ill.App.2d refreshed. (Adamaitis O’Neil had so, necessarily it foHows Plaintiff done having 311.) its use regarding and to cross-examine the memorandum right inspect settled law “This is clearly in the recollection by plaintiff process. Ill.App.2d v. Pennsylvania R.R. this state.” (Justice the source and to evaluate to know entitled hand, the hospital recollection. On other of the revival of plaintiff’s founda was no proper evidence. There record itself was not competent record nor tion laid to the circumstances of preparation Healy in court. See made this record produced who had person 12-13, 679. Chicago, the trial court the offer rejecting It follows that the ruling *14 the trial court rulings record in of evidence correct. hospital source of deposition plain- on the and on the cross-examination refusing recoUection were erroneous. tiffs refreshed the instructions. both direct our attention next to City O’Neil the tried before the second edition of IPI was avaüable. The case was No. 4 wül be considered This instruction Plaintiffs Instruction first. this in for tire O’NeH jury. objects the issues the case delineated “wilful” in that it omitted use of the word ground instruction on criticism is of the Act. This not well taken. describing violations also Plaintiffs Instruction No. 5 which gave jury The court in with established defined “wilful” accordance carefully authority of This is discussed without use that procedure approved above word. Instruction 180.04 a model for the issues IPI 2d in which is by pattern is model for on the enlightenment jury instruction and 180.14 of the cases, Act. In given definition of violation of the both instructions 5, court, Instructions 4 and with parallel the trial Plaintiff’s Nos. by now requirements expressed extreme IPI 2d. The in accuracy the need explains troduction to these instructions of the elimination 466 and “wilful!” IPI 2d at the comment to page word See pattern 180.01 at 467 468. our these pages opinion, Instruction instruc and in accordance completely tions as with given proper law. O’Neil also takes Court’s Instruction No. relat- exception ing to the burden No. of Plaintiff’s Instruction proof also to which gave the Work Act. We provisions of the Structural find that Court’s Instruction 1 on the burden of closely parallels proof No. IPI 2d Instruction case 180.09 as fit modified to the circumstances Plaintiff’s 2d Instruction No. the new IPI very bar. close to Instruction 180.01 for the that instruction except given fact court followed more instruction This closely language statute. is also criticized by O’Neil on the term that it failed to use ground “wilful violation.” findWe no error in the these giving of instructions and use of the same the trial court is approved.
We do find reversible error in connection with Plaintiff’s Instruc tion No. This 3. matter requires a statement. background It will be remembered that cause its and existed for almost six origin years as a action. negligence The original contained various complaint charges of negligence by defendants. An that allegation was included defendants had failed negligently with an ordinance comply City referred to as ch. sec. This City Chicago Code. ordinance required all persons control or super-vision any building in the cоurse of erection to with comply the Structural Work Act of Illinois. original also complaint charged that defendants negligently failed to comply with ch. sec. 4 of the Code City requiring openings floors to be properly protected and erection of barricades on openings intermediate floors. We note, that this parenthetically, “* # # original complaint alleged engaged in proper performance his duties” but contained no allegation plaintiff was in the exercise of due care for his own safety.
After trial, the case had been assigned for 15, 1970, January leave court, plaintiff filed an complaint amended consisting two additional Count 2 alleged counts. wilful violation of the Structural Work inAct three particulars. Count alleged the existence of Chicago described, Ordinance ch. above to in- pui-porting the Structural Work corporate Act and also providing provisions of the American Standard Code for Safety Building Construction promulgated American Standard Association shall be considered as accepted engineering practice regarding safeguards during construc- *15 tion. Count 3 alleged also various violations of other of the portions ordinance. 3, 1970, verdict,
On after February plaintiff filed amendments to the Count 2 complaint previously amended. was amended to add allega- tions regarding placement defendants; of ladder by failure of de- fendants to discover improper placement of the ladder the un- near hole; barricaded failure of defendants to require adequate lighting Count the opening. the area and failure safe barricades to supply 1(c) 1 and 75, sections amended to allege chapter violations open- in that Chicago 76, section 4 Code of chapter of Municipal through openings protected; should been covered or ing floor have guards enclosed which hoists should been properly operated all sides at danger shоuld have at been provided every point three feet in open areaway exceeding depth. complaint. amended
Defendant O’Neil filed a dismiss the motion to then cause The The court heard this motion before trial and denied it. advanced as originally to trial not on the proceeded theory negligence Work the Structural by but plaintiff, upon theory of wilful violation in effect embodies Act also of the ordinance. ordinance City This code safety state law and it reference to attempts expand Association, with other together standards of the American Standard ordinances of tire construction. City during pertaining precautions
Plaintiff trial of the cause throughout followed these theories all examining and the court overruled made defendants. objections various jury O’Neil counsel for engineer, brought before plaintiff provisions the manual of Accident for Contractors Prevention well as health Plaintiff various rules of the State of Illinois. safety court, took the with these the trial that position, approved compliance various safety codes was the construction required by contract. court then also various permitted jury counsel for to read to the portions City ordinances as above described.
At case, the close of the 3. gave court Plaintiff’s Instruction No. to be 2d This an instruction on the issues based IPI purported upon 60.01 pertaining to violation of a statute or ordinance. This instruction told the that all having ordinance provided persons control or of a supervision the course of construction should building with the Structural Work Act comply of Illinois. It stated that ordinance provided the American Standard Association rules should and, further, be considered as accepted engineering practice; described three provisions City ordinances requiring openings floors through which hoists to be protected; openings operated enclosed on all guards sides to be аll sides of required every open areaway feet exceeding three then depth. instruction stated plaintiff’s claim that he as a injured result of the proximate violation ordinance, the denial of defendants that they guilty of the viola- tions and their additional denial injured damaged extent claimed. In this regard, to the the instruction was patterned after and familiar the usual instruction issues. 2d 20.00 and fol- (IPI However, the instruction lowing.) as given contained no reference to *16 negligence and was no that reference to denial defendants plaintiff in the exercise of any reference to claim care as well as no ordinary plaintiff that did he was in the instruction exercise of care. The ordinary not follow 2d IPI 60.01 on a statute or ordinance violation of it did not tell the the fact could consider jury merely they violation with all the other circumstances in evidence facts and determining the existence of negligence.
We must first determine legal effect of the ordinance purport- ing adopt Structural Work its provis- Act in effect to expand The statute ions. applies of construction. The persons having charge ordinance applies to all persons charge of construction. having ordinance applies to all persons control or of con- having supervision struction. this regard, ordinance does not the statute. conform to The ordinance also American provides of the code of the provisions Standard Association should be considered as accepted engineering prac- tice. In this regard, the ordinance of the to exceed the bounds purports statute and to impose absolute liability who violates upon any person the code the American Standard Association during construction.
It is tire law of Illinois that when state has sovereign entered into a area specific and has provided regulations by statute governing tire in question, activities no ordinance of any municipal corporation inconsistent with the statute can have and effect. legal force “* *# No city ordinance in to, from, Illinois can add subtract * * * affect the provisions of a statute if conflict with * * a statute it is invalid (Traders Development Corp. Zoning Board, 383, 392, 20 Ill.App.2d The wisdom of this principle is readily apparent. Lawyers accustomed to orderly thinking and classification could conceive hardly every situation in which municipality could eliminate or statutes expand to modify enlarge legal causes of action in any of the myriad affairs of life regulated by statute. is, The ordinance depended in our upon by plaintiff opinion, nullity regards the rights of the has parties case bar. It no legal effect of any kind insofar itas purports to restrict or expand operation Structural Work Act within the boundaries of Chicago.
Plaintiff before proceeded however, the jury, as though the ordinance additional gave grounds for action under the Structural Work' Act far than those greater given by the Act itself. In our opinion, this error which prejudicial requires reversal of the judgments One herein. results of damaging proceeding permit plaintiff effect to establish a cause of action for violation ordinances on theory absolute liability without his own requiring plaintiff prove defendants. the negligence contributory negligence freedom from regulations, here, safety health and true, as urges It is con- into incorporated were jury, which counsel read to and, there- been material contract. These matters struction would contributory fore, of negligence read to the if the issues properly shown Under the circumstances negligence pertinent case. bearing upon had no matters error. here, the of these reading They the jury. the case and served to confuse the issues in 829, this 79, 250 N.E.2d & E. S. S. Corp., In Jones instruction which of an court reversed because judgment *17 Act of Health and Safety the the described to jury provisions the Act instruction of explained provisions This certain Illinois. merely Act, this also a and told could consider violation jury they evidence, in with all other facts and in determin- together circumstances This whether a the Structural Work Act. ing there had been violation of question court held that this was erroneous since tire statute in covered was between and and only relationship employer employee bar, not an of defendant. in the case at violations Similarly, employee of an ordinance should not be in determining considered whether Jones, Work Act in Further, merely Structural was was jury violated. told that violations of the other statute were to be considered them by with all the other facts and in determining circumstances evidence the Structural Work Act had criticized whether been violated. The in the case instruction at bar Instruction stated (Plaintiff’s 3) merely No. the claims of the This was combined with parties. burden proof instruction based tire Structural Work The result was upon Act. case, of all elimination other issues in the including contributory negli- gence negligence, except the one issue of violation of the Structural Act, Work as well as violation of the provisions of the ordinance. decision this court in Avery Co., The recent Moews Seed Corn There, 131 illustrates Ill.App.2d aptly this point. bar, to the situation at claimed that conversely he was injured defendant’s violation of rules negligent under the by adopted Illinois & Safety Health Act. The court permitted plaintiff’s to read attorney jury. objected these rules to the Defendant to this upon authority court defendant’s contention. rejected This The court pointed Jones. Case, Jones, out that in a Structural Work such as it to improper read But, rules of to the case type jury. this based upon negligence, to the rules before the permissible bring jury under proper instruc establish a by tions the court standard of care attempting as basis for of negligence. proof defendants,
As also out pointed by this error was accеntuated 1008 that, the fact for plaintiff over the court counsel
by objection, permitted matters, whether to read jury. Reading legal ordinances to the statutes, condemned ordinances has cases, or decided to the been cases; and, for decisions of in civil our courts for many years Bruner, shorter criminal Ill. period, even in cases. People v. (See & 146, 175 Trust N.E. Bank McGinnis v. Nat. Cosmopolitan such proceed court criticized this that it is ing out that dictates pointed roper trial “[p] practice the court to instruct as 114 Ill.App.2d to the law and not counsel.” at 117.
Plaintiff attempts ground his Instruction No. support literally it is language of the ordinance. This applicable correct but it overlooks the ordinance should never points that this been that the instruc- brought into the case in the manner attempted tion made, served as above other errors compound previously noted. We have con- carefuHy regarding plaintiff’s examined the record tention that the defendants failed error point regarding preserve We de- instruction. find that this raised point properly fendants at the their trial conference on instructions well as in post addition, motion. In the instruction one of a proceeding itself was facet which was erroneous from its Defendants made inception. repeated objections to the filing the additional complaint predicated upon ordinance, to of various reading matters the ordinance to jury, resulting negligence effective elimination issues of contributory in matters not the Structural Work negligence covered *18 and to finally Act the instruction the agree itself. We with contention by made defendants that there was reversible error this in aspect the case.
The'final
raised
O’NeH
point
by
to
pertains
allegedly prejudicial
made
arguments
jury
final
to
by plaintiff’s
the
counsel. O’Neil’s brief
argument.
details
instances of
unfair
allegedly
Counsel for O’Neil
certain,
all,
in
but not
of these
and
objected
instancеs
these objections
In a
overruled.
this
strong response
argument,
to
plaintiff urges
O’Neil;
the
were taken
alleged improper
that
remarks
out of context by
that
were not
and
no
they
improper
prejudicial;
was made
objection
of them. Plaintiff further
many
urges,
as to
or most
with good legal
and
the control
direction of argument
to
justification,
is
jury
of the trial
and that
judge
the discretion
this court must indulge
within
that this
reasonable
discretion was
every
presumption
in
properly exer
&
R.R.
v. Louisville
Nashville
249,
(Elizer
cised.
253-254,
O’Neil
to excuse its
827.)
261 N.E.2d
seeks
failure to
in
object
that,
instance
several
since
theory
objections had
every
upon
been
See
objection.
repeat
overruled, it was not necessary
made and
137,
453.
Arnold,
254 N.E.2d
v.
44 Ill.2d
Bruske
above
trial errors
The
claims.
We
not
these
upon
conflicting
need
pass
and
judgment
reversal
require
sufficient to
indicated are alone
again,
be tried
cause
addition,
should
remandment of fire cause.
be
It will
itself.
likely
repeat
the situation
regarding argument
this
in
counsel
of all
the attention
us,
sufficient for
to direct
respectfully,
court,
in the opinion
contained
case to the
statement
splendid
Lewitz,
Ill.App.
Schwartz,
in Durbin
Mr.
speaking through
Justice
arguments
481, 495,
denounced improper
2d
The court
contract said contractor.”
It is difficult of a contract of stronger to conceive more inclusive Not is the itself general language broad indemnity. sufficiently against include itself as in indemnity negligence City Corp., demnitee v. United States 105 Deel Steel (see 184-185, 109), but covered. expressly contingency Furthermore, the verdict included a finding jury necessarily O’Neil violated the Structural Work Act. This determination of the issue bound O’Neil and it could not be raised again question legal effect of the contract and indemnity (Sanitary Chicago District bond. Ill., & Guaranty v. States 65 Fidelity United 392 364; Thus, Co. Otto, Palmer House 106 Ill.App. N.E.2d 753.) directing trial court correct verdict completely indemnity for the City against favor of O’Neil. of plaintiff favor judgment against O’Neil and the City indemnity and also the for in favor judgment against O’Neil are reversed and cause is remanded a new for trial Count II of plaintiff’s complaint. reversed and cause
Judgments remanded for a new trial. Mr. concurring: EGAN specially JUSTICE I in his Mr. determination Goldberg concur with that trial errors Justice require a new The failure of the plaintiff trial. to mention the ladder in contradiction, even not deposition, though might constitute direct Bonham, People 422; 348 Ill. may be shown. N.E. Carroll v. Krause, 552, 15 N.E.2d 323. Ill.App. III, ordinance,
Count which was based on the should have been not That substance, submitted to the Count jury. alleged, that anyone who violated the sections of the ordinance specific or who did not with the of the American Standard comply provisions Code ipso Safety the Structural Work Act. I with agree violated Goldberg’s facto Justice ordinance, with but I reasoning holding respect would make my opinion, chapter further observation. In 76-1 (b) support count. That even subsection “The negligence provides: provisions Standard Code Building American Construction Safety of the. # * * Association American Standard shall considered as ac- engineering practice respect safeguards cepted construc- during subsection constitutes an delegation tion.” This unlawful of legislative *20 Depart- Garces v. authority to the American Standard Association. (See Education, ment Registration of raised and, While not not necessary concededly, decision my court, of delegation trial the question I wish to make known on my views its validity. of of recognition lest silence be as a tacit power my construed the claim maintains that of Adesko dissenting opinion Justice defendants and that the statute is a was never asserted the nullity was, the defendants’ therefore, waived. further states opinion and not only objection made at the conference the applicability, went to conference, the stated of the the trial invalidity, judge ordinance. At that hours, had they over the instructions for three with- gone apparently out a court and that he each reporter, give right would party make his objections for the He then said that he would give record. 1, 2 plaintiffs instruction 3. and The ensued: following “Mr. French: With regards to tendered Instruction plaintiff’s number the City of on the first Chicago objects ground, it all, of that it’s an to state two action attempt separate causes of based statute, the same actually upon on the further ground that to the ordinances is to into a incorporate go negligence type action, cause of which was dismissed preemptorily [sic] # * *. Mr. Valentine: On behalf Defendant O’Neil we wish also to object tendered Instruction number 3 and will adopt argument advanced counsel for the City * * of Chicago Both lawyers made the further objection that did not evidence show Further, applicability ordinance. the answer of O’Neil argument French Mr. on the motion for directed verdict the issue in the trial presented court.
In the brief of O’Neil the following 41: appeared page
“Despite the repeated objections counsel, of defense the trial judge permitted plaintiff to plead, argue submit to the theory of which liability totally unwarranted in the law. The hybrid raised —in theory effect a Struc- ‘City Chicago tural Work clear represented error. It seriously prejudiced Act’— the defendants and requires reversal of the cause.” (Emphasis added.) further,
The brief out with points appropriate abstract, references to the that all that, the trial had through they insisted though the ordinance rise to a cause of might give action for it negligence, could not be basis of a Structural Work Act complaint. The brief says expressly: “But could not and Chicago did not City create new right of action me that (Emphasis [under It thus appears Act].” added.) question was court, and, indeed raised in the important, trial equally the briefs all parties Significantly, us. put the issue before clearly the plaintiff claim, dissent, does not defendants as does that the waived the disagree not it in also point by the trial court. I must raising unconstitutional, with the assertion that we have ordinance declared an “sua sponte.” Chicago When O’Neil City brief that the argued its Act, could not an ordinance pass Structural Work expanding the tantamount, concerned, so far as I am to saying exceeded its that, therefore, vested authority had usurped power in the legislature.
The dissent states: “It was mandatory but only proper trial court to on a permit plaintiff’s par of the local pursuit remedy ** * First, State statute is no there (Emphasis added.) on the objection part defendants to the plaintiffs pursuit *21 basis; local second, but on a remedy, negligence it seems that the plaintiff himself took the that than “on a position the ordinance was more par” with tire statute when he the argued to the adopted same law “and a few more teeth in it.” put
I must further disagree with the that we have dissenting opinion Clinton-Jackson; from departed the holding Kaspar v. that Kaspar court being distinguished approved negligence action court, ordinance; from separate the Act and the Kaspar and that the if it had felt that the ordinance statute or exceeded the bounds of the action, could a only be would said pursued negligence so. reason I is that the was disagree Kaspar to point presented never only points Kaspar court. The raised a refusal to were appeal allow exhibit to to the a refusal go jury; interrogatory; to give special and excessive damages. dissent,
I fail to see how Nelson v. Union Wire cited in the Rope Corp., is for the that a read ordinances to authority proposition party may indicates, jury. As the of the language opinion quoted dissent court held that the had been simply point waived failure to raise it in the motion. post-trial
Nor Ido see the of applicability Logue Williams to the dissent’s a “basic holding impeachment prohibits that rule of allusion a state- * * * ment admits where that his has been altered party opinion circumstancе. At that some no further can be juncture inquiiy The rule added.) that, made.” (Emphasis Logue provides Williams statement, if the admits made the having impeaching witness the adverse That go hardly need is the situation this case party further. defendant not even ask permitted where the question trial that new plaintiff. For these reasons I adhere to view my required. court properly
I further that trial Goldberg agree Mr. Justice lacking; foundation excluded the a proper because hospital report instruction 4, 5, that and Court’s instructions number and 9 number 1 was sufficient were that the evidence properly given; work; and that support finding charge O’Neil was some, While bound agreement City Chicago. O’Neil to indemnify all, in his final argument but not of the remarks plaintiff’s attorney unsaid, were better left I that his constituted argument do not believe reversible error. would, however,
I hold that evidence fails to show go further and or the City of the Structural Work Act or O’Neil applicability of a wilful violation the Act. guilty Two basic must be noted: the principles has the burden and he is bound proof; allegations complaint. that, testified after went wall, he around the first he
turned on his because the electric flashlight lights working. were not floor, He was with his walking along light on the shining checking for debris time to time and material on the lying floor. When something arm, out, hit his he dropped flashlight, which went he started it. he searching Previously, had noticed the debris the City Inspector was a told him about. There little spillage concrete. As he was going bays, wood, around the different he noticed there was “red to be and iron installed going angles, channels, that were going machinery” be installed on the sides. After [the] looking hospital records, his was refreshed as memory to how he fell in the maze: “A. I was searching feeling with feet my and bent over with — hands find
my trying to my flashlight, and I tripped losing balance, my trying regain my I felt the edge of a ladder — *22 and slid it little bit rungs, along with And I me. remember into that’s all that falling space. And I remember until I come out of the hole.”
Later his he said that testimony, he had previously sent two men down to the location to clean some He up that, debris. explained when forms are taken off by his some employer, concrete and small pieces of lumber that were built around the forms to brace them fall off. When accident, he there four before the days was he saw a barricade at the where he fell. This was point long of 2 x piece 4 running diagonally from the floor about three feet and up braced or rested against another short of 2 x piece which was braced against the wall. On cross-ex- amination he testified: heard the it,
“A. I and I bent over—I flashlight, My dropped ahead it light rolling just fall. It went and it sounded like was out over, scraping of me and I bent to feel for the and trying light two, took time, it, for and I feet at the my feeling same ladder, and four, I over a tripped three steps, maybe I me and balance, ladder shifted with trying regain my I fell into could feel and then along hands rungs my swung space.” of the occurrence testified that at the time plaintiff Ryan John he
he the accident was after co-employee plaintiff. day He injured. another man to the hole been plaintiff went where then said: hat Well, a hard
“A. we shined the down there saw light I there on a ladder. and some other and climbed down belongings, did find this ladder? Q. you Where don’t if in the hole or if I put A. I remember it was already it down I rather anxious I had found there. was some because things.” is From this concludes “that difficult Goldberg evidence it Justice floor
determine the record if on the concrete lying the ladder was sub-basement, level between the intermediate place former,” However, is above the floor of the and I it protruding agree. and used in the placed ladder position plaintiff the “end of the ladder from the protruded hole where he fell into the baffle area.” He is best opening position darkened addition, since lad- own interpret meaning testimony. Belt, ders less feet Link it see than 10 were used is difficult to a ladder 18 feet on that Since the why anyone long would floor. place feet, hole was feet of an 18 approximately maneuverability must under the circum- relatively foot ladder would be difficult. We the plaintiff’s interpretation. stances accept and the contentions of the because plaintiff I to the evidence advert finds “no the concrete floor Goldberg problem concluding Justice from fell was a scaffold or support require- which the within Whether the concrete floor or was not a ments of the Act.” scaffold debatable, immaterial, allege but because the does not so the concrete was a defec- He does claim that floor complaint. in his of the bases his claim of a If that were one wilful viola- tive scaffold. Erickson, Goldwin, not matter under Schultz Karris v. tion, it would Louis v. Edison or cited Barenfanger, v. Commonwealth Spiezio ladder, debris, else that Goldberg, anything whether was Justice I not see the Consequently, applicability him to and fall. do trip caused
1015 claim, rather, these cases here. His is based to the evidence and pleadings first on and II: (b) the assertion in Count paragraphs (a) or failed to discover [c]aused, permitted
“(a) [The defendant] or situated in an area where a ladder that improperly placed there; at or workmen have occasion to be near might walking by, [emphasis added] Caused, or failed to discover ladder that was
(b) permitted near in an unbarricated placed adjacent, or improperly [sic] hole;”
The pleadings, the
counsel at the trial
argument
and
brief,
and the statement of counsel at
argument
oral
make
clear
that, but for the fact that a
was involved in some
this claim
way,
ladder
would be for
and not under the Structural
Act.
negligence
Work
To
illustrate, this case had been
under common
filed
law
and
negligence
had
remained so
five
It
refreshed
years.
was after
his recollection from the
before trial
hospital record
and remembered
that a ladder was involved that the
was amendеd. Parentheti-
complaint
“* * *
I
cally,
note the
record shows:
Patient
while
hospital
states
working he
down
losing
sladder
consciousness for
few
[sic]
fell
* * *”
hours.
(Emphasis added.)
* * *
Section 60 provides that all “ladders
shall be erected and
constructed,
safe,
manner,
suitable and proper
shall be so
constructed,
erected and
as to
placed
operated
give proper
adequate protection
the life and
person
limb
or
any
persons em-
thereon,
ployed or
or
engaged
same,
under or
passing
by
and in such
manner as to
prevent
material
falling
be used or
any
deposited thereon.”
The
(Emphasis
concedes that
added.)
case
not
does
involve the life and limb of
or en-
person “employed
on the
gaged”
then
question
ladder.
becomes
interpretation
* * *
not,
or by,”
under
as the
“passing
complaint alleges, “walking
at or near.” The plaintiff refers to the title of
Act
itself
Bennett
v.
Musgrave,
Ill.App.2d
266 N.E.2d
for the propo-
authority
sition that the Act
for the
provides
protection
“in
safety
persons
and about” the
That
construction.
does
language
appear
the title and
cited,
the case
but the term “in
one,
and about”
an all-inclusive
em-
those
bracing
employed
on the
engaged
device
well as those
case,
under
it. In the
passing
Bennett
plaintiff was injured by
a wrench which was
from a scaffold
dropped
above
him.
Act,
reasonable interpretation with full recognition that it is to be
construed
ladder
liberally, requires
be so placed and operated
material,
as to prevent
tools or the ladder itself from falling on any per-
it,
sons
or by
under
passing
including persons
involved in the con-
has
involving recovery
straction. In
case our research
disclosed
every
Act,
under
on the
or a
injured,
person
either the
device
person
Bennett
under or
it was
some
falling object. (E.g.,
struck
walking
128;
Brackett
Musgrave, 130 James
288;
Koepp
Black
&
32 S.W.2d
Masonry Contracting
Mo.
*24
Co.,
179;
v. National
139
151 Wis.
N.W.
Enameling
Stamping
States,
In
involving
Skinner v. United
209
other cаse
F.Supp. 424.)
every
ladders, the claim was for common law
Hill v. Lundin
negligence. (E.g.,
Associates, Inc.,
&
620;
256
Barnard v.
260 La.
So.2d
Trenton-New
Co.,
Brunswick Theatres
32
A.2d
In other
Super.
873.)
108
N.J.
words,
Act, must
that the
coverage
to invoke the
of the
be shown
was
the ladder
used
a
If the
injury
position
caused when
was
as
ladder.
correct,
of the
then the Act is
plaintiff
applicable, assuming ongoing
is
construction,
occurs
one of the
regardless
injury
of where
long
Thus,
hoist,
if
devices named in the statute is involved.
a ladder (or
crane,
outside on the
stay,
against
ground,
were
etc.)
placed
building
himself,
and the
them
the Act
injured
over
plaintiff tripped
any
would be
v. Thomas
As was said in another
applicable.
setting Vykruta
Co., Inc.,
291, 302,
Hoist
“Such an
75
“(c) permitted provide contractors to furnish or enable adequate lighting a ladder next placed workmen to discover or situated impropеrly hole;” in an unbarricated to or [sic] section of the Act nor case which would refers to no failure to consti- provide adequate lighting his contention that support
1017
tutes a
the Act are not to
wilful violation of the
provisions
Act.
with the
equated
obligation
(Parizon
a safe
work.
provide
place
v.
Co.,
Granite
Steel
N.E.2d
City
27.) Assuming,
71
218
Ill.App.2d
for the
solely
sake of the
that the failure to
plaintiff’s
provide
argument,
Statute,
could
I
adequate lighting
recovery
be the
under the
basis
must conclude that the evidence
to disclose wilful violation
fails
defendants. O’Neil had removed
in March and was not in
lighting
its
the area at the time of the accident. The plaintiff”s employer
put
in its
lights,
own
and its men
before and
working shortly
morning of the accident. The
duties included
checking
lights. It is not reasonable to
that O’Neil or the
should be
say
charged with the
were not
knowledge that the
when
lights
working
Inc.,
himself did not
House,
know it.
Lavery
Ridgeway
176, 188,
Ill.App.2d
117;
Thomas
Vykruta
Hoist
291, 303,
“(d) failed to [The supply provide defendants] safe, suitable and proper barricade over or shaft that opening had been used to hoist material.”
This allegation charges violation of Act, section which *25 that, basically provides if elevating machines are hoisting apparatus used in a building the course of during construction for the purpose lifting materials to construction, be used in such then the contractors or owners shall cause the opening be enclosed or on all fenced sides aby substantial barrier or at least railing feet in eight height. I agree with that McGinnis v. Goldberg Cosmopolitan National Justice Co.,
Bank and Trust 114 Ill.App.2d 56 is not applicable here. In case hole in a the floor had been cut the for purpose installing dumbwaiter or The elevating plaintiff hoist. walked over to hole, the “placed her hand on a protective wooden board about three feet * * high, leaned over barrier and fell into the basement [the] The dumbwaiter wаs in being put the to enable the building employer to move certain material from the basement to the first floor more easily. court, appellate holding that section 66 was not applicable, said: “In bar, the case at the hoist or dumbwaiter was not used for the being purpose any materials in the elevating construction or alteration of the but building, was to be the structure itself.” The court distinguished Claffy Co., Dock Chicago and Canal 249 Ill. 94 N.E. 551: “In that case, there was no that the dispute but plaintiff fell into a shaft which used was for hoisting machine then admittedly being in the con used struction or alteration of the building.” (Emphasis added.) case,
In this if the accident had occurred on the previous Thursday hoistway, as testified, used the area was when, being tiie witnesses or require obligation provide there was an the plaintiff”s argument that the evidence contends Goldberg barricades be tenable. might Justice the through of materials hoisting as to the when conflicting precisely conflict, however, testimony the is no hole There completed. was injured. plaintiff day establishes that it was before the completed wit- the evidence, testimony plaintiff’s undisputed including into which nesses, areaway leads to no other conclusion but day as a hoistway fell no used longer being plaintiff level, re- the plans the hole at roof as the accident. O’Neil had closed area, cleaning up. save Belt had its work completed quired. Link water; the barri- under consequently, The area was to be permanently witness, the hole said that cades removed. Ryan, had been up” “holed week was hoisting previous that had been for used injured. was not on the hoisting day plaintiff used no evidence, longer I to barricade duty Under conclude that re be that the barricades required existed. The nature of the structure moved; site, including hoisting, at this particular all construction work If, contend, always once a hoistway seems to plaintiff had ceased. subjecting removed without the barricades cоuld never be hoistway, under this For liability. example, of the work party charge unbarricaded fell into the if the men the barricades theory, removing Realty Ave. hole, would attach. v. Vanderbilt (See liability Korfanta case, after most N.Y.S. App.Div. Korfanta returned to perform had been completed, the construction The Court elevator shaft. unguarded minor and fell down an repairs some longer the shaft under the evidence no held that the duty guard existed. that, if O’Neil actually further contends even had Goldberg Justice other its activities as well its work completed hoisting
suspended or occurrence, since they area in before question in the particular work, still held they be) charge could be found (or that O’Neil would not be proposition under the Act. With liable activities, I completed he am hoisting excused because simply us- must that someone was prove but complete agreement, *26 he on the and I submit has day question, hole as a hoistway the ing Gamm, of v. N.E.2d The case Pantaleo not. case, is In that the inapposite. gen- Goldberg, cited factually by Justice ladders, on the there no a material hoist were jobsite; left eral contractor on the site. The material the scaffolds, hoists hoist was or personnel roof, ground from the to the requiring thus get means available only hoist, some material standing piled on on the while plaintiff, The its use. caught hand was to shake and his began the hoist injured when existed condition proscribed is that the the cable It pulley. apparent a defective use of i.e., presence required at the of the the injury, time condition, i.e., opening an unbarricaded hoist. In the proscribed this case the the injury. did not exist at time of used as being hoistway, the I has failed to prove For these conclude that the plaintiff reasons were defendants of Structural Work Act that the applicability therefore, would, reverse of wilful violation the Act. I guilty any of judgment.
Mr. ADESKO dissenting: JUSTICE
I I this case majority dissent from' think respectfully opinion. should be affirmed do not dispute The defendants multiple reasons. the seriousness of nor amount injuries, damage, brain including $150,000. concerned, verdict of II is relating Insofar Count Act, of the Illinois concedes that: majority violations Structural Work (1) case; the Structural Work Act the facts in this applied to (2) area on which plaintiff stood and from which he fell was platform Act; within the purview that there is a Struc (3) violation tural Work Act in defendants’ failure area to barricade the from which plaintiff fell. All of the elements to affirm this exist necessary judgment here. The majority holding departed has from the established effectively rule if count, a judgment alleged is sustainable on error affecting counts, other case Count III relating to applicability chap ter Chicago ordinances entitled “Safeguards During Construction”, is immaterial. v. Savage, 88 Ill.App.2d 260. Jordan
The ratio decidendi of my colleagues’ reversal is as follows: Since Act, ordinance admittedly adopts Structural Work “expands” also statute, the provisions of the is the ordinance therefore How nullity. ever, claim statute never defen asserted nullity dants and was therefore waived. Catholic (Haymes Bishop Chicago, 33 Ill.2d objections made 690.) conference instructions, after the stipulated parties project contracts admissible, raised no contention that the ordinance was a nullity. The defendants’ to the objections went of the ordi applicability nance. used,
Although the term is not this decision actually results outright declaration unconstitutionality. majority conceded that presentation of a constitutional preservation question was never court; proposed the trial ruling and no essential our authority review, Birnbaum, made. ever (City Chicago 274 Hence, 49 Ill.2d declaration that the ordinance is a “nullity,” *27 1020 unauthorized, of unconstitutional, as a court and
therefore is improper cannot, statutes or ordinances sua undertake to declare review sponte, unconstitutional. the ordinance in the is the opinion suggestion that
Implied
majority
it
instructiоn
3
if
applicable,
proper,
No.
have been
in
and not as a
tendered in
count sounding
negligence
a
been
The majority
that of the State Statute.*
akin to
mandatory requirement
by plain
had been dismissed
the fact that the
count
negligence
overlooks
buttressing
majority
tiff
the trial
The rationale
before
commenced.
that “a
cannot enact a
opinion is contained in the phrase
municipality
law
is
or conflict with
statute.”
designed
sovereign
to overrule
a
statement—
with
correctness of that
obviously,
There is
no
quarrel
laws in
a
It is
sovereign
cannot enact
conflict with
state.
municipality
however,
true,
not
not enact an ordinance de
that a municipality may
intent
signed to
into effect the
of a
implement
purpose
put
and/or
law,
police
State
for it is
exercise
municipalities may
well settled that
power
State,
differ
concurrently
police regulations may
and that
not
subject,
the same
if
inconsistent therewith.
those
State on
1105,
Curtis,
10
p. 22, City Highland
Ill.App.2d
No.
Park v.
83
I.L.P.
of
218,
It is clear exists concurrent abundantly jurisdiction that there ordinance fields, in this and other and the construction Chicago citizens Chicago, 76 of the Ordinances of the appearing Chapter it meet conditions peculiar statute adopting State and localizing imple- to the not intend to but rather was city, designed did conflict ment its and insure enforcement. implementing
To declare an ordinance null because expanding There exist provisions to invalidate ordinances. would city many could anomaly mandatory compliance requirement State’s —that *28 not in Cities could not enact paralleled mandatory be ordinances. City trades in parallel in construction fields. The misunder- requirements lies can use standing in the majority believing municipalities as ordinances a matter. negligence scaffold all this effect of declare unconstitutional all ordinances which remotely subject touch the same cities matter under the guise been “pre-empted” by State statute. The well-known doctrine that ordinances and statutes read together, be harmonized and concur may short, effect would put by into be shelved the instant rently In opinion. all municipalities would abdicate their responsibility their own citizens of—all this being to common sense and contrary judicial consistency. also, Weilander, (See Town Cicero v. 40, 183 N.E.2d 35 Ill.App.2d of however, My colleagues, fail to between an distinguish ordinance which tends to enforce a a (which statute simple comparison of the two proves is the fact here) another which be totally antithetical it.
A of an specific example ordinance implementing appears Treаdway v. 488, 24 Ill.2d 182 City Rockford, N.E.2d 219. State (Ill. Under law of 1959, Stat., 24, ch. par. Rev. ordinances 8) zoning amended, bemay 73— but a only after notice in of a newspaper before some commission hearing The Rockford zoning committee. ordinance expanded the ambit of the zoning board with dispensing newspaper notices and permitting initiate, property owners to by petition, proposed changes ordinances. In the additional approving “expanded” requirements of the zoning ordinance, our court supreme said: “® * * It is that when obvious a statute prescribes certain steps
as conditions to the enactment an of ordinance these must steps with, be substantially complied and we have further held general where a ordinance zoning includes additional procedural amendment, its requirements for not inconsistent with those of statute, requirements these must also be complied with. (Cain v. 343 Ill. Lyddon, 175 391.)” N.E. Co. v. Chicago City Cosmetic 374 Chicago, Ill. of of local ordinances
495, the two approved Illinois Court Supreme to chemical of numerous variations City Chicago there were although not con the ordinances paint licensing encompassed factories said Kizer court supreme tained in 11.2 of statutes. chapter Mattoon, N.E. 22: Ill. the general ordinances must harmony “While municipal state, give and in case of a conflict ordinance must laws of a does that the legislated upon subject mere fact state has way, subject with the city deal necessarily deprive power under a by city general Police enacted regulations ordinance. the same upon from those of state grant power may differ not inconsistent therewith.” provided they are subject, district, of this holdings appellate This in another division departs in- ordinance recently for a division of this court has held very action separate creates cause of consistent mandatory volved here with, to, State Illinois. Act of the parallel Structural Work although ordinance was The court held the instant unrelated also violation Jackson, 254 N.E. negligence Clinton Kaspar There, in plaintiff’s 2d 826. three counts were contained second separate Act; the Structural I—violation of Work complaint (Count amended Ordinance; Count II—violation of the Construction Safeguards During case, con- and Count As instant contracts negligence). III— case, as in this of a Again, plaintiff, employee tained broad language. sub-contractor, fall and a result because the failure injured *29 opinion the concerned third provide Although primarily to barricades. issues, trial and courts and appellate distinguished ap- both the party action as from both the “Structural negligence being separate the proved Construction” ordinance. the During Work Act” and Had “Safeguards the statute felt that the ordinance exceeded bounds of the Kaspar court action, opinion as a would negligence could be pursued and/or for leave to was denied appeal so indicated. It did not. have (Petition Supreme Illinois by Court.) a case, instant that there is conflict be justification,
It is said in the liability statute affixes to those “in and charge,” tween the which or everyone ‘having supervision.” ordinance which control applies basis for the ordinance declaring But not be proper this would supreme our court in Larson argument rejected That “nullity”. 316, 321, 247, in the 33 Ill.2d v. Commonwealth Edison following language: this it conceded that some decisions
“While may Act appear equated the Scaffold have jurisdiction involving degrees, and control’ ‘supervision varying with having charge’ statute, it is opinion legislative our of the and language reflects, are intent it do not that the terms conclusion permit the inflexible and of the other. The unbending equivalent legal term and ‘having charge import, of is term broad generic control, it not con although may include and is supervision Gould, to it. As ‘charge’ People fined was said of the word 345 Ill. ‘The not include necessarily custody, 323: wоrd does restraint, control or and must be meaning its determined associations and circumstances its have surrounding use. “To charge of” not than to care for or to imply does more necessarily Thus, have the care while the actual of.’ exercise supervision and it, control over the and the or the re persons doing work control, tention of to so and be factors right supervise on ultimate factual whether an owner is bearing question factors, ‘in are not or conclusive nor charge’, they is necessary Rather, made a qua either sine non for under the liability statute. consistent its beneficent purpose injury preventing persons employed extra-hazardous of structural occupation work, the thrust of the statute is not confined to those per who form, control, or supervise, or right or who retain the to supervise control, arises, but, the actual work which injury to insure maximum protection, made to extend owners others charge who erection alteration of build ing or structure.” (Emphasis added.) It was not only proper mandatory for the trial court permit but of the local pursuit remedy par with the State statute: (1) To act; avoid confusion in interpreting the identical give To (2) to the validity sovereign statute. Plaintiff’s instruction No. there- local fore, was the City’s personification Act, Structural Work even if the ordinance provided American Standard Association rules should be considered as accepted practice. In no engineering regard, objection defendant, and, was made either no state rule certainly, provision emasculated; statute was on the those contrary, affected ordinance by the were well advised of the accepted require- industry, ments their since negligence was in Count involved III, the instruction omitted reference to con- appropriately negligence, tributory negligence like. has majority improperly considered rationale in evidentiary
permitting introduction and reаding evidence to the relating *30 various standards or record, As safety regulations. appears from the all these documents and were statutes obligatory requirements included incorporated the contracts. The contracts were admitted into agree were by read to the portions and the stipulation evidence indemnity agreements. relating of the those excepting ment parties, jury, colleagues make it as case law were read My though appear cases, allusions but such is not the There were no from quotes when fact. local ordinances Act requirements, to the Structural Work of violations contained in the contracts and determinative and standards con during the method of avoiding injury of those laws upon (reflecting struction) pro objection. transcript without This appears —all under ceedings, examining wherein witness attorney Stat., Practice Act Rev. ch. (Ill. section of the Illinois Civil the contract that O’Neil received Under “Q. provisions you Do there were certain conditions. City Chicago, them? remember Well, to, no. what you referring
A. I don’t know are exactly is I about the conditions—where that? —that Q. I am talking conditions, think conditions. general special are called Yes, A. that’s correct. conditions copy is Plaintiff’s Exhibit This contract
Q. about agreed Chicago that O’Neil (indicating). Yes, is of our contract. A. part take are familiar with these conditions. you And I Q. Yes, A. sir. to see that person charge, is function as the your What
Q. complied are with? requirements conditions A. Yes. are Now is one of these conditions with which familiar you
Q. D-4, 2.1? That reads as Section follows: page follows at all observe with all comply contractor shall times ‘The laws, laws, ordinances and regulations and state local federal work, and all manner affect conduct which at the present and decrees exist which such orders later, having legal juris- bodies tribunals legislative enacted work, no misunder- plea over the authority diction or bе considered.’ ignorance thereof will standing # £ # If Court I believe we please, stipulate VALENTINE: MR. entire contract familiarity Heuer has a with this general that Mr. Phillips that Mr. to. referring the portions this, that we already agreed stipulated have I we think contract would be into admitted the pertinent portions immaterial and the would be. portions evidence
# *31 certainly and I Well, now MR. it’s in evidence PHILLIPS: would to read it anyhow. right
THE him look at agreed COURT: Let it. We pertinent in. parts go would
MR. VALENTINE: No to that. objection AH MR. PHILLIPS: right. laws, and construc-
‘The provisions budding safety applicable codes, tion all shall be Machinery, equipment, observed. with hazards accordance guarded shall be or eliminated in Con- Accident Prevention safety provisions the Manual of struction General Contractors published the Associated America, to the extent that are not in contra- such provisions vention of law.’ applicable
You are with that? acquainted Yes,
A. sir. book, And Q. believe, this is the I that is alluded (indicat- ing). Is it not manual? this
A. That’s correct. And this
Q. contractor, O’NeH general belonged I think organization. Did it not?
A. That’s correct.
Q. Is one of you those Are provisions barricades? relating familiar with that? Yes,
A. there would be a section on barricades.
[0] [0] [0] Q. conditions, you Going page E-l general acquainted this provision (indicating)?
THE COURT: Give him a chance to see that.
MR. at the PHILLIPS: top.
[0] [0] [0]
MR. first PHILLIPS: very paragraph.
MR. VALENTINE: No objection to that.
MR. Procedure, PHILLIPS: A11 This right. is entitled ‘201-Plant Methods, and It reads as Equipment.’ foHows:
‘The shall contractor determine the method to be employed, and the foHowed, to be procedure the equipment, false- plant work, other shoring, structures bracing temporary and equip- ment to be used contract, work under this subject approval documents contract requirements methods, safe procedure, adequate Only engineer. be used.’ structures, and shall equipment recall that section? Do Q. you Yes, A. sir. procedures? of the safe one fighting Was
Q. adequate A. Yes. unguarded a hole that was And the use of barricade
Q. you understanding under the safe procedure also required contractor had? a general
[*] # # A. Yes.” admissible, no if rule, in otherwise regard, general *32 especially these provisions, introduction of
error is committed by examination his adverse conceded during since O’Neil’s own witness his employer knew that he familiar with these standards was have pre- would provisions comply very was required into a lower level. vented the fall 769, 69, in Ill.2d N.E.2d Union Rope Corp., Nelson Wire work nineteen construction wherein during a of a hoist collapse volved trial judge in Nelson was the The trial seriously injured. judge men were be affirmed and should case. He affirmed Nelson in the instant was propriety reading approving here for the identical reasons. Court Florida, Illinois Supreme Jacksonville, ordinances of the said: Florida, Jacksonville, city occurrence here the
“Prior to the code reference a b,y building ordinance which adopted passed an ordinance Code,’ and also Building known as the ‘National Code for Safety Standard reference the ‘American adopting by the American Elevators, by Escalators’ compiled Dumbwaiters and were introduced evi- These ordinances Standards Association. and the co-defen- counsel for plaintiffs dence by plaintiffs, por- Archer read permitted Iron dants Union Wire defendant repeated to the over jury, objections tions thereof first, Mutual, neither code to construction applied American not and did hoists, that the ordinances were invalid second the field statute had because State pre-empted come into effect is complained That on this evidence regulation. ruling of elevator The contentions on appeal. the same of, raising the defendant motion however, in defendant’s not raised written was first point, will not be it for review and preserve so as to a new trial for a a motion in new writing files party Where considered. motion, trial, for such therein reasons specifying grounds review, to the restricted, grounds he will be in a court of be reasons in such motion and will deemed specified written (County have waived all other or reasons for a new grounds trial. 183-184; Batclwlder, Board Ill.2d School Trustees v. us, Lukich v. As the matter cоmes to Angeli, 31 Ill.App.2d had application trial court that the ruling ordinances to construction hoists cannot be Ill.2d 113-114. questioned.” 31 have been impeachment holds that should plaintiff majority to the Struc permitted. material evidence as related question, issue, tural matter subject Work Act on the permit inquiry would not concerned, claimed to be reversible error if for the initial reason that all, alleged Whether contributory negligence plaintiff. bent over or his feet after his scraped flashlight fell or touched the ladder prior to falling lower level is This totally inquiry irrelevant. not. material defense, because was not as the contributory negligence negligence count Co., was not before the jury. In Able v. Pure 8 Ill. Oil 558, 290 App.3d the court said: “Where the action charges knowing violation of the Structural Work Act the not his due required prove own care and plaintiff’s a de- contributory negligence urged fense. (Rovekamp v. Central Construction 45 Ill.App.2d 756.)” Factually, that, my colleagues evidence, concede overwhelming it is undisputed the plaintiff injured failure to have erected'barricades are (barricades in both the required statute and the It is ordinance). also undisputed that plaintiff’s fellow workmen found and other flashlight equipment the hole the following day. O’Neil’s foreman also admitted that a ladder found in the hole after plain- *33 tiff’s and that injury, he had used it himself just days Everyone before. who testified and the agreed, photographs showed, introduced in evidence that there no barricade at the Therefore, site where plaintiff fell. even if had not plaintiff all, testified at or irrespective of the existence ladder, of a or whether he fell, touched the ladder at time before he the evidence affords no conclusion other than plaintiff that was injured in the fall the shaft.
There are other reasons why impeachment if improper even claim were based plaintiff’s on negligence, which it was not. The were inadmissible statements becаuse (1) they im- materially peaching; (2) plaintiff admitted that the deposition version was erroneous.
O’Neil has on imposed this court making appear that there is state- the court testimony between discrepancy substantial The against militates O’Neil. deposition. testimony ments three taking testified in court that he encountered a ladder plaintiff after court testi- in time from the deposition or four varied steps. question the three during and concerned what to the happened mony the same time four and not after —the two did not cover parallel steps The record bears this interval. out: then did do? you And what
“Q. know, I over hand and feeling, you A. bent my know, because, feet for the your along, feeling you scraping light, room and it sounded like it was the sound the whole travels me, feeling ahead of and I bent over and kept walking just all and I fell. That’s I remember.” it must on appear Before one may impeached, testimony different than that materially thereby the stand is given previously, the witness. credibility to the Defendants seek to obtain going had conceded advantage by reading deposition after he have been examination that mistaken the deposition. direct that since he refreshed his giving deposition, He further testified his records, he admitting from the which showed told the hospital memory a ladder. direct the fol- During intern he had fallen over testimony, lowing transpired: Now, some time gave deposition ago back
“Q. you didn’t you? Yes, sir.
A. about Did clear that you memory everything hap- Q. incident, all the time? you day pened No, A. sir. Is there seen that something you’ve brought back some
Q. of these things?
A. Yes. did see? you What
Q. a hospital report.
A. I seen What did back? bring
Q.
# # # some hospital reports, I’ve seen some pictures. A. What did back to bring your
MR. PHILLIPS: Q. memory hospital reports? saw these you when me I the doctor that was exam—that examined A. What told I taken to hospital. when was *34 When did records? Q. you see those A. Couple ago. weeks had happened what What then remember
Q. you did in detail?
# # # records? at these looking did then remember after Q. you What A. I fell the —in maze. About how I—how maze? did fall Q. Okay. How you and bent over with feet my A. I was searching feeling— losing and tripped I flashlight, hands to find my trying my of a ladder balance, I felt my edge my trying regain — I fall- remember it with me. And rungs, and slid little bit along I out until come that’s all that I remember ing into And space. of the hole. in this hole? Well, were down
Q. long you do know how you No, A. sir.” outside the request, pres-
The court held a conference at defendants’ ence the jury, following: and the discloses the record this Well, morning testimony
“THE COURT: I heard the giving said his recollection since man he had refreshed from the doctor’s record reading and that from deposition them about trip- then he told hospital he remembered what over ladder. ping
I the direct fully testimony think was all covered this, he didn’t therefore, He said impeachment. would not be that, presence I heard this outside the remember but he does now. and I a few moments ago. so ruled offer, course, in, it’s im- is I still don’t think now but This under the circumstances.” peachment, A allusion to statement which prohibits basic rule of impeachment admits that testimony party differ from court where open no juncture, has some circumstance. At that been altered opinion Williams, 159, 163 111 can Logue further be made. inquiry 327. counsel elicited this informa- plaintiff’s This rule varied because is is contrary, attorney tion direct On the during testimony. plaintiff’s having without to be commended for correction of initiating testimony was no error to be the court or There opposing counsel. prompted objection attempted quote to defendants’ sustaining plaintiff’s had, time, at another a confused show deposition of his or varied exact minute fall. opinion of because, con- is majority justified impeachment attempted tended, important ladder was a “central most presence with the aspect However, case.” inconsistent totally initial there majority’s concession that defendants are liable (whether *35 orwas was not because of the of section a ladder violation protruding) un- 66.of Illinois Structural Work Act lеaving unprotected, barricaded and hole. unguarded
Therefore, the ladder be device although may “another” mentioned the Structural Act a he Work whether before struck ladder reversal, fell be no basis for already since O’Neil had violated would act to by failing only barricades. The additional violation would provide cumulative; be it would not constitute reversible error.
In the last
analysis,
alleged
admission
exclusion of
statement
to be inconsistent is
generally within
discretion
the trial judge.
discretion,
there is
Unless
a clear abuse of
such exclusion
no
constitutes
for
basis
error.
Union Starch and
1
(Nowicki
Refining
Ill.App.3d
674;
Dalton,
Closterides v.
49
N.E.2d
Ill.App.2d
200
The Mal
judge
many years
experience
these cases
trying
was well
and
versed
law of evidence. He
correct in
ruling.
was
his
I have
examined the
carefully
arguments
counsel and it is clear
that all
attorneys zealously protected
interests
their respective
of.
clients,
Kirkwood,
but I see
that is not
nothing
encompassed in Enloe v.
In Court Cook be should affirmed.
ADDENDUM TO DISSENT May (filed 1973): Since I have filing dissenting opinion, special received my concurring opinion Mr. Egan. Before dissent I writing my given Justice to understand that Mr. concurred Gold- Egan with Mr. Justice Justice berg opinion, thereby constituting think majority opinion. I Egan’s Mr. concurring opinion at this late is special highly date Justice dissent, constitutes an improper, attempt reply argue against to takes also issue with the Mr. on a opinion Goldberg very Justice this is vital whether or not case within the namely, Structural issue— Act. I necessary clarify Work deem it issue order to this have and I concur Mr. majority opinion, Goldberg with case Justice is within the Act and Med properly Structural Work as such. opinion, majority constitutes is what question next vital Goldberg Mr. opinions. three it, separate have we now as I see Justice is for trial; Egan Mr. new for a remanding for reversing is Justice sensible I think affirming. am for and I outright; reversing as two inasmuch say, me to ruling a majority obtaining solution to I would is to be reversed reversal, this case that if are for justices the tie. in order break remandment to vote for of having a position forced into Furthermore, I do not want concurring opinion, special Egan’s to Mr. file dissent a separate Justice think he is he I what says. disagree I though completely even law. the facts and misconstrued error and has May OPINION (filed CONCURRING SPECIALLY ADDENDUM TO 16, 1973): dissent filed Mr. to his the addendum of the tenor of view Justice he impression the erroneous create
Adesko and since seen before opinion that he had never my views or aware of complete my no other choice but I have I conclude that the filing, regretfully answer it. *36 dis- may express
First, concurring opinion of that a it is not unheard opinion See, concurring for example, a dissent. agreement with Evans, 400 U.S. at 94-95. in Dutton Harlan Mr. Justice month before over a Second, opinion Adesko received my Mr. Justice it but with Goldberg concerning with Mr. He conferred filing. Justice else my to me that feelings conveyed nor anyone me. Neither he Goldberg previously Mr. “highly improper.” opinion Justice me. observations any did confer I invited seen my opinion and criticisms he cared to make. each of us took argument the oral
Third, at the conference following It reflected in the written opinion. that is the same precisely position then, now, that, Mr. views Goldberg’s it is since apparent Justice had one judge agreeing of the case other separate aspects on the two Adesko had them, view. If Mr. majority his was each Justice conference, should certainly after the they views concerning my doubts over a month he received well my opinion been when dispelled loss, I Goldberg. am at and discussed with Mr. filing before Justice therefore, to understand” that I was how he was “given understand of Mr. opinion Goldberg. with the complete agreement Justice GOLDBERG CONCURS WITH ADDENDUM. Mr. JUSTICE