author: ME. JUSTICE McNAMARA

text:
    Patrick Walsh, Plaintiff-Appellee, v. Dream Builders, Inc., an Illinois Corporation, Defendant, and Sigmund Levin and Morris Rapoport, a Partnership Doing Business as Sim Construction Company, Defendants-Appellants.
    Gen. No. 52,859.
    First District, Fourth Division.
    August 5, 1970.
    Rehearing denied and opinion modified November 25, 1970.

      Vogel & Vogel, of Chicago, for appellants.
    J. M. Duffy, of Chicago, for appellee.
   ME. JUSTICE McNAMARA

delivered the opinion of the court as modified on denial of petition for rehearing.

Plaintiff, Patrick Walsh, brought suit against Dream Builders, Inc. and Sigmund Levin and Morris Eapoport, doing business as Sim Construction Company, to recover damages for personal injuries which he had sustained. He charged both companies with violation of the Structural Work Act (Scaffold Act). Dream Builders, in turn, filed a counterclaim against Sim Construction, hereinafter referred to as defendants, and against plaintiff’s employer, Carney Plastering Company. During trial, Dream Builders paid $6,500 to plaintiff, was voluntarily dismissed from the action and dismissed its counterclaim against defendants and Carney. Defendants’ motions for a directed verdict at the close of plaintiff’s case and at the close of all the evidence were denied, and the jury returned a verdict in favor of plaintiff and against defendants in the amount of $15,000. The verdict was subsequently reduced to $8,500 in order to reflect the settlement with Dream Builders, and judgment was entered in the reduced amount. Defendants’ post-trial motions were denied, and they appeal.

Plaintiff was injured as the result of an accident which occurred on December 19, 1960. At the time of the accident, plaintiff, a plasterer’s helper for Carney Plastering Company, was engaged in plastering work at a two-apartment building under construction at 6747 North Artesian Avenue in Chicago. Dream Builders was the general contractor on the construction, and defendants were the carpentry subcontractors.

Plaintiff’s injuries were sustained when a temporary stairway at the jobsite collapsed as he stepped on it. The stairway was built like a ladder and was the only means of ingress and egress between the landing and the first floor. The stairway was about five feet in length, with four steps. The steps and stringers consisted of two-by-ten boards, were ten inches wide, and were about fourteen inches apart. There were no handrails or back supports.

Plaintiff’s duties were to mix plaster outside of the building and to bring the plaster on a hod to the two plasterers inside the building. When full, a hod weighed between 85 and 100 pounds, and normally plaintiff would carry a few hundred loads of plaster each day. At about 4:00 p. m. on the day of the accident, plaintiff carried a load of plaster up to the second floor. After dumping it, he came down from the second floor to the first. As soon as he stepped on the temporary stairway leading from the first floor, the first step gave way and knocked down the other steps. The steps did not break in any way. Rather, the nails gave way and were pulled out by the stringers.

Richard Stalzer, an engineer, testified as an expert witness for plaintiff that he was familiar with all phases of building construction, including temporary stairways. Such stairways should be built in accordance with certain minimum standards. In his opinion, the stairway in question did not meet those standards. The distance between the risers was excessive; there was a failure to put in riser supports; and the cleats supporting the steps were of insufficient thickness. As a result, the nails would lose their holding power and the stringers would move laterally. Therefore, the tread would move away from the stringer and would have a tendency to collapse. Stalzer also testified that removal of the stairway and its replacement, using the same nail holes, would weaken the device and that this was bad practice.

Plaintiff and Herbert Bailie, one of the plasterers on the job, testified that when they arrived at the building to start work, everything including the temporary stairway, had been set up for them. They did not know who constructed or installed the stairway. At some jobs, it was necessary for them to construct such a stairway themselves, or use a regular ladder. Ordinarily, the temporary stairway would consist of two-by-four boards, rather than the heavier two-by-tens found on this stairway. Plaintiff also testified that he and the plasterers had moved the stairway once during the course of their work in order to plaster behind it. This had occurred about li/2 days prior to the accident. He further testified that they only removed the nails holding the stairway to the building structure. They did not touch any of the nails in the steps of the stairway.

Only plasterers were working at the building at the time of the accident. Under the construction contract, defendants’ work was interrupted to allow the lathers and plasterers to complete their part of the construction. Accordingly, the carpenters who had been working throughout November stopped work on December 10 and returned to the job on January 4, 1961. After defendants’ employees left the instant job on December 10, the lathers completed their work, and on December 15, plaintiff and two plasterers started their work.

Francis Carney, plaintiff’s employer, was called as a witness by plaintiff, and testified that neither he nor any of his workers installed the stairway. After he testified further that he did not know who had installed it, the trial court found him to be a hostile witness and permitted counsel for plaintiff to question him about a prior inconsistent statement made at a discovery deposition prior to trial. At that deposition, Carney had stated that the stairway was erected by the carpenters. He subsequently stated at the deposition that he understood that the stairway was erected by the carpenters, and that usually it was carpenters’ work.

Carney subsequently testified that he also was the lathing contractor on the job, and had subcontracted the lathing work. Prior to the injury to plaintiff, he had inspected the jobsite. He visited the premises before the lathers commenced work and also while they were on the premises. At those times, he used the temporary stairway to get to the first floor. Carney further testified that it was the same stairway which his plastering employees were going to use in their work. He found the stairway to be secure and solid. In his opinion, the lumber used on the stairway was so heavy that it would require the use of an electric saw and ruler for its construction. He repeated that he did not know who installed the stairway in question, but stated that it was carpenters’ work.

Morris Rapoport, a partner of defendants, testified as an adverse witness that he supervised the carpentry work on this job. His men had erected two temporary stairways for this construction, one running to the first floor and one to the second floor. The stairways were constructed by his men on the premises. When his carpenters temporarily stopped work in December, one of his employees took both stairways from the jobsite. Rapoport was present when this was done. When his carpenters returned to complete their work in January, there were no stairways present on the premises.

Benjamin Weiss, an officer of Dream Builders, testified as an adverse witness that as general contractor, he visited the premises occasionally. He never saw the stairway in question. It was his practice to have each trade bring its own equipment and remove it when their work was done. He also testified that carpenters ordinarily did not install temporary stairways for the use of other trades.

On appeal, defendants contend that the trial court erred in not entering judgment in its favor, since plaintiff failed to prove that defendants had violated the Scaffold Act. In the alternative, defendants argue that they are entitled to a new trial because the verdict was against the manifest weight of evidence, that the trial court committed reversible error in allowing Carney to be cross-examined by plaintiff as a hostile witness, and that the trial court committed prejudicial error in denying defendants’ motion for a mistrial after certain remarks made by plaintiff’s counsel.

For liability to attach under the Scaffold Act, Ill Rev Stats c 48, § § 60-69, it must be shown that defendants were in charge of the work within the meaning of the Act, or if defendants were not in charge of the work, that defendants erected the defective stairway in question: Larson v. Commonwealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965). Plaintiff concedes in the instant case that defendants were not in charge of the work. Consequently, we need only consider whether there was sufficient proof that defendants erected the stairway on which plaintiff was injured, and whether the proximate cause of plaintiff’s injuries was the defect in the stairway.

Verdicts should be directed and judgments notwithstanding the verdict entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). A fact may be proved by circumstantial evidence. Busch v. United States Fire Ins. Co., 66 Ill App2d 435, 213 NE2d 584 (1966). The Illinois Pattern Instructions, IPI 1.03, define circumstantial evidence as proof of facts or circumstances which give rise to a reasonable inference of the truth of the fact sought to be proved. It is the function of the jury to determine the facts, disputed as well as undisputed, and to make reasonable inferences therefrom. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). And in Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212 (1960), the court stated at p 436:

“The fact that contrary inferences would be equally supported by the evidence is not sufficient to show unreasonableness of the verdict. It is the jury’s function to weigh contradictory evidence, judge the credibility of the witnesses and draw the ultimate conclusion as to the facts. Its conclusion, whether relating to negligence, causation, or any other factual matter should not be set aside merely because different conclusions could be drawn or because judges feel that other results are more reasonable.”

Although the evidence as to the construction of the temporary stairway was entirely circumstantial, we find that it was sufficient to support the jury’s determination that defendants had constructed and installed the stairway upon which the accident happened. It is conceded that defendants’ employees had constructed two such stairways upon the premises when they commenced the carpentry work. The one stairway constructed and used by the carpenters was located at the situs of the accident. The construction of the stairway in question required the use of special tools, and these special tools ordinarily would be used only by carpenters. The stairway was already in place when plaintiff and his fellow employees commenced their plastering work. And most significantly, Carney, plaintiff’s employer, testified that he visited the jobsite prior to the accident while the carpenters were still on the premises and also while his lathing subcontractor was working. During these visits, he used the temporary stairway running to the first floor, and testified that it was the same stairway which his plastering employees were going to use. He also stated that the installation of such a stairway was carpenters’ work. From all these facts and circumstances, if the triers of fact were to disbelieve the testimony to the contrary, they could reasonably determine that the temporary stairway in question was constructed and installed by defendants.

In Reed v. Johnson, 55 Ill App2d 67, 204 NE2d 136 (1965), a case factually similar to the instant case, the court, in affirming judgment for the plaintiff, stated at p 72:

“Appellants argue that the evidence establishes that they had previously removed all the scaffold along the east wall and that the verdict is therefore against the manifest weight of evidence. The three defendants, two of their employees and the owner of the building testified that all of the east wall scaffold was taken down before the steel workers came in. Defendants urge that if someone else borrowed their scaffold materials which were still on the job and put the scaffold up again, they should not be liable for the injury received by plaintiff. On the other hand, plaintiff’s witnesses, Wilson, Morgan and Anderson and the plaintiff himself, all testified that the scaffold was standing by the east wall when they arrived. It is suggested that since defendants had the responsibility of patching the wall around the ends of the bar joists, they had reason to leave portions of the scaffold in place. We believe that this was a fact question properly left to the jury, and the jury’s verdict indicates that they resolved the question in favor of the plaintiff and we see no occasion to disturb that finding.
“The recent decision of Lawler v. Pepper Const. Co., 33 Ill App2d 188, 188 NE2d 687, involves a somewhat similar factual situation. In neither case was there proof that any other person reconstructed the scaffold, and since it was there at the time of injury, it is reasonable to infer that it was left in place by defendants.”

And in Busch v. United States Fire Ins. Co., 66 Ill App2d 435, 213 NE2d 584 (1966), plaintiff, a young boy, was discovered upon insured’s premises with Ms clothes on fire. The owner of the property, the insured, testified that earlier in the day he started a fire in his incinerator. Judgment was entered for plaintiff, and on appeal the defendant insurance company contended that the evidence failed to prove the injuries were received on insured’s premises. In affirming the judgment, the court stated at p 439:

“There is no direct evidence as to what caused the boy’s clothing to catch fire and where he was when it did. The evidence is circumstantial. Circumstantial evidence, however, has long been accepted as sufficient to support either a jury’s verdict or the finding of a judge.”

Defendants argue that Rapoport’s testimony that his employees removed the stairway from the premises when they temporarily ceased their work was unimpeached, and therefore could not be rejected by the jury. In making this argument, defendants cite Larson v. Glos, 235 Ill 584, 85 NE 926 (1908), which held that a jury wilfully or out of mere caprice may not disregard the testimony of an unimpeached witness. However, in the case at bar, Rapoport’s testimony was contradicted by the circumstantial evidence, and could reasonably be disregarded by the triers of fact. It should also be noted that the carpenters were leaving the premises only temporarily, and did in fact return to resume their work just two weeks after the accident.

Defendants next contend that even if it could be determined that the temporary stairway was constructed by them, plaintiff still failed to prove them guilty of a violation of the Scaffold Act. They argue that the proximate cause of plaintiff’s injuries was his own act of moving the stairway during the plastering work, rather than any defect in the construction of the stairway.

However, in Oldham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270 (1962), the court stated at p 88:

“What is the proximate cause of the injury here, as in most cases where it is in issue, is ordinarily a question of fact for the jury, to be determined from a consideration of all of the attending facts and circumstances.”

The testimony of plaintiff was to the effect that about V/% days before the time of the collapse of the stairway, he and the plasterers moved the stairway. However, in making this move, they removed only the nails holding the structure to the building. They did not touch any of the nails in the steps of the stairway. This testimony of the plaintiff was supported by the fact that the step did not break at the time of the collapse. It was also supported by the evidence of the expert witness, whose expertise is not challenged by defendants. The expert witness testified that the stairway was constructed improperly in several respects, that the improper construction rendered the stairway dangerous. As a result of the defects in construction, he testified that the stairway would have a tendency to collapse. He also testified that the removal of the stairway and its replacement, using the same nail holes, would weaken the device and that this was bad practice. Thus, it was for the jury to determine whether the defects in the construction of the stairway caused the injuries to the plaintiff, and their determination is conclusive.

Defendants next contend that, in the alternative, they should have been granted a new trial because the verdict was against the manifest weight of the evidence. In light of our view of the evidence as discussed above, we find that the trial court properly denied defendants’ motion for a new trial.

Defendants also contend that the trial court committed reversible error in permitting plaintiff to cross-examine his own witness as to a prior inconsistent statement. During trial, plaintiff attempted to call Carney, his employer, as an adverse witness under section 60 of the Civil Practice Act. Plaintiff pointed out to the trial court that defendants had brought an indemnity action against Carney, and the latter’s interests were adverse to plaintiff. The judge would not permit Carney to be called as an adverse witness since he was not a party to the principal suit. However, the court noted that he was concerned about the possible hostility of the witness to plaintiff. Carney was then called as a witness by plaintiff, He was asked who had installed the stairway, and replied that he did not know. After a conference, the trial judge, pursuant to Supreme Court Rule 238, Ill Rev Stats 1969, c 110A, § 238, permitted counsel for plaintiff to cross-examine Carney as to a prior inconsistent statement made by him at a discovery deposition, wherein he had stated that the carpenters installed the stairway.

While ordinarily a party cannot impeach his own witness, if a party’s witness unexpectedly gives testimony at variance with an earlier statement, the party calling the witness has the right to call the attention of the witness to such statement for the purpose of refreshing his memory. McCray v. Illinois Cent. R. Co., 12 Ill App2d 425, 139 NE2d 817 (1957). And in Reed v. Johnson, supra, a witness called by plaintiff testified that the planks used on the scaffold were sixteen feet long. He had testified at a discovery deposition a week before that the planks were eight feet long. Plaintiff’s counsel advised the court that he was surprised by the testimony and the trial court permitted plaintiff’s counsel to question the witness as to his deposition testimony. In affirming the judgment, this court held that the action of the trial court was proper.

It seems obvious that plaintiff was surprised by Carney’s testimony regarding the construction of the stairway. We therefore hold that the trial court properly permitted plaintiff to question Carney as to his deposition testimony, and correctly denied defendants’ motion to strike that testimony. In so holding, we recognize, and plaintiff concedes, that the examination of a witness, who is not a party to the suit, as to a prior inconsistent statement could be used only for impeachment or to awaken his conscience, and would not of itself constitute substantive proof that defendants’ employees installed the stairway. See Guthrie v. Van Hyfte, 36 Ill2d 252, 222 NE2d 492 (1966).

Finally, defendants contend that the trial court committed reversible error in not allowing their motions for a mistrial. In counsel for plaintiff’s opening statement, he stated that plaintiff had a wife and two children. On direct examination, he asked plaintiff whether he was married. Defendants’ objections were sustained in both instances, but defendants’ motions for a mistrial were denied.

Undue emphasis on the fact that an injured party has a family dependent upon him for support could be reversible error. McCarthy v. Spring Valley Coal Co., 232 Ill 473, 83 NE 957 (1908). However, in Brayfield v. Johnson, 62 Ill App2d 59, 210 NE2d 28 (1965), during closing argument, plaintiff’s counsel informed the jury that plaintiff had a wife and family. This court, while stating that the domestic circumstances of the parties were irrelevant in a suit for personal injuries, held that only where it appears that the trial judge abused his discretion and that the jury had been misled by the improper remarks would the verdict be set aside on that ground.

In the instant case, the remarks were not unduly emphasized by plaintiff’s counsel. Moreover, the trial court promptly sustained defendants’ objections to the remark and question, and found that the defendants’ case had not been prejudiced by the remark. We do not believe that the trial court abused its discretion in denying defendants’ motion for a mistrial.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

STAMOS, P. J. and ENGLISH, J„, concur.


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    Thomas Raines, Plaintiff-Appellee, v. New York Central Railroad Company, a Corporation, Defendant-Appellant.
    Gen. No. 53,637.
    First District, First Division.
    August 17, 1970.
    Rehearing denied November 9,1970.

      Lord, Bissell & Brook, of Chicago (Richard O. Olson, Alvin E. Domash, and Richard E. Mueller, of counsel), for appellant.
    James A. Dooley, of Chicago, for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from a judgment rendered in the Circuit Court of Cook County which was entered upon a jury verdict in favor of plaintiff in the sum of $750,000. This action was brought under the Federal Employers’ Liability Act (45 USC, § 51 et seq.), for the recovery of damages for plaintiff’s personal injuries which he incurred while employed as a switchman by defendant. The defendant railroad admitted liability and the case was submitted to the jury solely on the question of damages.

The defendant seeks a reversal and a new trial based upon errors that it asserts were prejudicial to the defendant. Basically, the contention is that the jury’s verdict is excessive and that this court must grant a new trial on the issue of damages. Underlying this contention, the defendant asserts that the trial judge erroneously admitted evidence which prejudiced the jury and resulted in the excessive verdict. Furthermore, defendant contends that the trial court erred in refusing to instruct the jury as to the fact that the plaintiff’s award would not be subject to income tax and that the trial court improperly refused to grant a mistrial because of the alleged prejudice resulting from a television broadcast.

Plaintiff contends that the question of excessiveness of the verdict cannot be reviewed by the court and relies upon the case of Hack v. New York, C. & St. L. R. Co., 27 Ill App2d 206, 169 NE2d 372 (1960), where the court discussed the propriety of a State reviewing court’s power to consider a question of manifest weight of the evidence in a Federal Employers’ Liability Act case. The court stated, at pages 215-16:

“It has repeatedly been held that a reviewing court in such cases cannot reweigh the evidence. Probably a better statement of that rule would be to say that a reviewing court has no right to consider the evidence and from that consideration determine as to whether or not the verdict of the jury was against the manifest weight of the evidence. The only question presented . . . is as to whether or not there is an evidentiary basis for the jury’s verdict, and when such evidentiary basis becomes apparent the appellate court’s function is exhausted.”

The defendant in Hack was contending that the jury’s finding of negligence was erroneous and did not question the amount of the verdict. The Hack case conforms with the decisions in Lavender v. Kurn, 327 US 645 (1946) and Gallick v. Baltimore & O. R. Co., 372 US 108 (1963).

Plaintiff argues that the rule of review with regard to manifest weight questions is equally applicable to a question regarding the excessiveness of the verdict. In this respect, the case of Grunenthal v. Long Island R. Co., 339 US 156 (1968), is relied upon by plaintiff. The United States Supreme Court reversed a Court of Appeals decision which had ordered a remittitur from a jury verdict rendered in a federal district court action under the Federal Employers’ Liability Act. The defendant railroad had appealed on the basis of an excessive verdict. The petitioner (plaintiff in the district court) contended that the Court of Appeals had exceeded its powers of review by reasons of the Federal constitutional provision of the Seventh Amendment or that such review was prohibited by the statute itself. The Court did not decide on either ground, expressly holding that the trial judge’s action should not have been disturbed since there was no abuse of discretion in accepting the jury’s verdict. This was the standard of review relied upon by the Court of Appeals in Grunenthal, which was expressed in Dagnello v. Long Island R. Co., 289 F2d 797 (1961). The Grunenthal decision concluded that on the Court’s appraisal of the evidence, the trial court did not abuse its discretion in accepting the jury’s verdict.

From the above, it is evident that the contention raised by plaintiff was not decided in any of the above cited cases. The defendant has asserted that the case of Smith v. Illinois Cent. R. Co., 29 Ill App2d 168, 172 NE2d 803 (1960), disposes of this contention. That case expressly held that a reviewing court of this State could decide a question of the excessiveness of a jury’s verdict under a Federal Employers’ Liability Act case. The appellant railroad contended that the Appellate Court could decide questions of excessive verdicts but could not rule upon the question of the weight of the evidence. This court agreed and reasoned that the reviewing courts of this State followed the common law rule that if a trial court improperly failed to enter a remittitur or grant a new trial, a reviewing court could correct the judgment if warranted. See also Crowley v. Elgin, J. & E. Ry. Co., 1 Ill App2d 481, 117 NE2d 843 (1954). The Smith case stated that the question of an excessive verdict was controlled by the law of the forum as a procedural matter. Further, the Smith case noted that the Federal judiciary would lack the power to pass on the issue due to constitutional prohibition in the Seventh Amendment and that the issue involved a question of fact that was beyond the purview of a federal substantive question.

We are of the opinion that the rationale of the Smith case is controlling the issue before this court. We think there is a reasonable distinction that restricts appellate review of a jury’s determination as to the manifest weight of the evidence under the Federal Employers’ Liability Act, but allows a reviewing court to consider a question of excessive verdict based on common-law principles. We conclude that this court has the power to consider the propriety of the trial court’s judgment regarding damages awarded by the jury’s verdict. The defendant’s contention is that the jury’s verdict was the result of passion and prejudice. This court has the power to review the evidence and pass on such a question, regardless of the fact that plaintiff’s right of action is based on the Federal Employers’ Liability Act.

A brief summary of the facts shows that on May 18, 1967, the plaintiff sustained injuries while engaged in coupling air hoses between a locomotive and boxcar in defendant’s railroad yard. The accident resulted in the amputation of both legs. He was taken to a hospital and underwent surgery on May 18, and on several subsequent occasions. The operations performed were initially of an orthopedic nature and later the plaintiff underwent several operations for plastic surgery, consisting of skin grafts. Plaintiff was under continual nursing care and was given various drugs for pain. In July of 1967, the defendant employed a surgeon with the intent of possibly rehabilitating plaintiff by undertaking further operations to fit plaintiff with prostheses. Plaintiff refused such treatment and was eventually discharged on August 18, 1967. Defendant has paid all expenses of treatment up to the date in July, when plaintiff refused treatment as to the artificial limbs.

Approximately one year later, trial was held on the issue of damages. Evidence was presented by medical testimony of plaintiff’s past, present and future condition relating to rehabilitation, to the permanent nature of his injuries and to his pain and suffering. Testimony was produced concerning the plaintiff’s family consisting of a wife and three children, his educational history and his work record. His employment with defendant commenced on April 29,1967, as an extra board switchman, in which he earned $330.56 up to the date of his accident on May 18,1967. His prospects for future earnings as an employee were examined. Evidence of his past and future medical expenses was introduced. The record discloses that both parties presented a great deal of expert testimony from medical and economic witnesses regarding the amount of damages that the plaintiff was entitled to by reason of this occurrence. The testimony dealt with aspects of past and future loss of wages. Both parties introduced testimony regarding the most advantageous economic means to compensate plaintiff in damages. Plaintiff’s life expectancy was established as 42.8 years.

With regard to the contention that improper evidence was admitted, the defendant asserts that improper testimony as to the future of economic inflation and testimony regarding railroad retirement benefits served to arouse the passion and prejudice of the jury in arriving at the damage award. We will discuss these categories of evidence separately.

The evidence of future inflation was elicited by plaintiff’s counsel on direct examination of his own witnesses, cross-examination of defense witnesses and in rebuttal during the trial. The first instances occurred in plaintiff’s case-in-chief, when John P. Henderson testified as an economics expert. There was no question as to his qualifications in his profession. The witness testified as to past trends in the economy, describing inflation, the increase in prices and wages, and the devaluation of the purchasing power of the dollar. On direct examination he gave the opinion that the inflationary spiral would continue to affect the price level by an estimated 2-4 percent per year. His reason for this opinion was because of a monetary policy which believes that some amount of inflation was desirable to stimulate prices. He also gave an opinion of the future of interest rates for the next 30 years, stating that a return to a peacetime economy would lower interest rates. Henderson also considered the devaluation of the British pound, which he said would cause the formal devaluation of the dollar after the 1968 election, that would, in turn, cause domestic inflation.

Edward McKinley was called as a witness for the plaintiff. He was an experienced investment banker. He testified as to past trends of inflation and dollar devaluation. He also gave the opinion that the inflationary spiral of increased cost of goods and wages would continue. The rebuttal of Edgar D. Tripple, who was an insurance salesman for a company that promoted annuities, also mentioned aspects of future inflation. Tripple stated that an annuity was not a hedge against inflation, but that variable annuity plans would meet the contingency of future inflation.

Two of the defense witnesses were cross-examined as to the effect of inflation. Thomas C. Smith, who worked in the area of private pension plans, said that estate plans did not consider dollar devaluation nor inflation; also that long-term bond investments would not cope with inflation and that the witness would not buy bonds if prices rose and dollars were cheaper. Similarly, Edward J. Mullen, a professional actuary in the pension field, stated that in annuity computations, no provision is made for inflation except if a variable annuity is used. This testimony from the defense witnesses was in response to an inquiry of plaintiff’s counsel as to the subject of inflation.

Defendant argues that the trial court erred in permitting this testimony to be admitted in evidence. The contention is that such testimony is speculative and conjectural, and that it aroused the jury’s passion and prejudice in reaching this award. Plaintiff maintains such testimony is competent evidence that serves to give the jury a meaningful standard with which to assess damages. Plaintiff also asserts that the expert testimony served to describe this economic problem with regard to loss of future earnings and that the concept of inflation is common knowledge which can be considered, even if not proved by evidence.

We think the issue involves a question of first impression in this state. The question is: Whether evidence of future inflationary trends in the economy are admissible to a jury as an element to be considered in assessing damages ? Stated another way, is such evidence so speculative and conjectural as to influence a jury’s verdict improperly as to damages ?

Plaintiff relies upon Grunenthal v. Long Island R. Co., supra, where the United States Supreme Court cited the trial judge’s remark that an award for future wages was based on unrefuted testimony regarding steady increases in future wages that were likely to continue. As stated earlier, the decision in Grunenthal involved the question of whether the Federal District Court abused its discretion in approving the award as found by the jury. No issue as to the prejudicial nature of testimony as to future inflation was raised in that decision. The plaintiff’s reliance on this case is easily distinguished from the instant case. The cases from other jurisdictions dealing with the question of loss of future earning capacity, where an individual had no present economic base at the time of injury or wrongful death, are also easily distinguishable. In those cases, the injured individual must be considered as having an undetermined future earning capacity that will increase. Thus, speculative evidence is allowed in order to aid the jury in determining what a person’s possible earnings might have been. Krohmer v. Dahl, 145 Mont 491, 402 P2d 979 (1965); Complete Auto Transit, Inc. v. Reese (Okla), 425 P2d 465 (1967). The above cases do not allow testimony of future economic inflation as an element of damages, since the loss of future wages must be expressed in the present value when the verdict is reached.

Plaintiff seeks to persuade this court by reliance upon the well established rule that a reviewing court will take judicial notice of the decline in purchasing power of money in considering an issue of excessive damages. Downs v. Baltimore & O. R. Co., 345 Ill App 118, 102 NE2d 537 (1952); Howard v. Baltimore & O. C. T. R. Co., 327 Ill App 83, 63 NE2d 774 (1945); Milis v. Chicago Transit Authority, 1 Ill App2d 236, 117 NE2d 401 (1954); Smelcer v. Sanders, 39 Ill App2d 164, 188 NE2d 391 (1963); Braswell v. New York, C. & St. L. R. Co., 60 Ill App2d 120, 208 NE2d 358 (1965). This rule has been recognized as cogent when a party on review seeks to compare other damage awards from the past as relating to damages in a given case. Reviewing courts have used judicial notice of inflation in justifying larger damage awards based on similar factual situations. This is not the issue before us. Similarly, the above rule has been applied to show that a jury may consider the effect of inflation from the date of injury to the date of verdict. The above cases of Downs, et al., do not justify a jury in considering the effect of possible future inflationary trends.

In Harper & James, The Law of Torts, Vol 2, § 25.11 (1956), the problem of inflation as an element of damages has been examined. The authors state that juries have been allowed to consider changes in living cost from the time of an accident to the time of trial. With regard to the consideration of inflation as to future losses, the text states:

“Greater confusion surrounds present damages for future loss. Future trends in the value of money are necessarily unknown and so always render such damages speculative in a way we cannot escape. If the estimates represent a straight-line projection of present living costs, they will be frustrated by fluctuations either way. If prophecy of change is heeded, frustration will follow if no change, or the opposite change occurs. When courts have consciously grappled with the problem they have either found all prophecy too speculative and so, perforce, have taken the equally speculative course of betting on a continuance of the status quo; or they have made intuitive and not always very wise judgments that present conditions represent a departure from some imaginary norm to which they think we shall rapidly return. It is not at all clear that courts would be willing to hear experts on the matter, or that they would get much real help if they did. For the most part, the problem — which is inevitably present in every case of future loss — is not analyzed and the present value of money is assumed to be the proper basis.”

Other jurisdictions have generally considered evidence of future inflationary trends as speculative, and therefore incompetent evidence for a jury’s consideration. In Armentrout v. Virginian Ry. Co., 72 F Supp 997 (1947), the fluctuation of the purchasing power beyond the date of verdict was considered speculative and not proper for the jury’s determination of lost future earnings, which should be based on present economic facts. In Zaninovich v. American Airlines, Inc., 26 App Div2d 155, 271 NYS2d 866 (1966), a wrongful death action, the unpredictable nature of future inflation was characterized as “amateurish speculation.” Only one case has been found to the contrary. In Henwood v. Moore (Tex), 203 SW2d 973 (1947), a reviewing court considered an issue of ex-cessiveness of verdict. That court, without supporting authority, indulged in the presumption that the devaluation of the dollar would continue and that income taxes would be materially reduced. This presumption was not considered in the context of evidence to the jury.

We are of the opinion that the use of evidence concerning future inflationary trends and the questions concerning the difficulty in hedging inflation were erroneous. Based upon the above examination of authorities, we conclude that such evidence should have been excluded by the trial court. The testimony served to prejudice the jury in its deliberations. Despite plaintiff’s assertion that inflation is a matter of common knowledge, the law of this State has always been that certain elements of damages (for personal injuries) must be estimated by the jury at their present value.

Defendant has also complained of evidence introduced by plaintiff regarding retirement benefits. Plaintiff called Emil J. Gravee, a contact representative of the Railroad Retirement Board which administers the Federal Act for railroad employees. This Act serves to substitute for Social Security benefits, in that once a railroad employee has 10 years of service, he is qualified under the Railroad Retirement Act and will no longer be eligible to receive benefits from Social Security. Gravee testified as to the benefits that might be receivable by an individual who continued as a railroad employee for a number of years in the future. The witness also testified as to hypothetical estimates of retirement benefits and of the future contributions that may be made by railroad employees.

The defendant’s contention is that such evidence is inadmissible. The cited authorities announce the rule that defendants will not be allowed to introduce railroad retirement benefits to prove such facts as extent of disability, malingering or as mitigation of damages. Eichel v. New York Cent. R. Co., 375 US 253 (1963); New York, N. H. & H. R. Co. v. Leary, 204 F2d 461 (1953), cert denied, 346 US 856. The rule has also been applied to bar a plaintiff from introduction of such evidence to prove an injured party’s disability. Gilroy v. Erie Lackawanna R. Co., 279 F Supp 139 (1968). Plaintiff seeks to distinguish these cases because of the purpose for which the testimony was introduced. Plaintiff’s argument is that the loss of a railroad retirement pension was a part of his pecuniary loss as a contingent right to future compensation beyond retirement. The case of Groat v. Walk-up Drayage & Warehouse Co., 14 Cal App2d 350, 58 P 2d 200 (1936), allowed evidence of a contingent right to a pension where a police officer had been permanently disabled. The injured party lost his right to a pension which would have accrued in four years from the date of his injury. The contingent right to a pension was considered analogous to loss of future earning capacity.

The Groat case is only persuasive authority and it dealt with a situation where the probability of the accrual of a pension was great. In the instant case, the plaintiff had just begun to work for the railroad. Despite his assertions of his intention to continue as a railroad employee, his work record weighs against such a state of facts. It was undisputed that he would have to work at least 10 years for the railroads before being eligible for benefits. We think there is little similarity of plaintiff’s position to that of the plaintiff in Groat, supra. We feel that such evidence was erroneous as being too speculative. Furthermore, we agree with defendant’s contention that this evidence was duplicative of other testimony which sought to compensate the plaintiff for lost wages over his life expectancy of 42.8 years, which would encompass his projected years of retirement. Plaintiff could not be entitled to both the compensation for lost earnings and possible retirement benefits by virtue of the pension.

Accordingly, we hold that the trial court committed reversible error in admitting testimony of future inflationary trends and the testimony as to retirement benefits was similarly erroneous. We feel that this testimony prejudiced the jury in their deliberations as to the amount of damages to be awarded to plaintiff. This prejudice will necessitate a new trial on this issue. The question of the prejudice caused by the television program will be moot on retrial. As to the remaining issue of failing to instruct the jury that the award would not be subject to income tax, we say that such an instruction is not proper.

The judgment of the Circuit Court of Cook County is reversed and the cause remanded for a new trial.

Judgment reversed and remanded.

BURMAN, P. J. and MURPHY, J., concur.


author: MR. JUSTICE ENGLISH

text:
    Edward Wrobel, Plaintiff, v. Bennett P. Trapani, Defendant; Bennett P. Trapani, Third-Party Plaintiff-Appellant, v. John Hillesheim Painting & Decorating Co., Inc., Third-Party Defendant-Appellee.
    Gen. No. 53,458.
    First District, Fourth Division.
    August 19, 1970.
    Rehearing denied and opinion modified November 13, 1970.

      Jacobs, Williams, and Montgomery, of Chicago (Wyatt Jacobs and C. Barry Montgomery, of counsel), for appellant.
    Vogel & Vogel, of Chicago (Robert C. Vogel and Robert Guritz, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court as modified on denial of petition for rehearing.

Third party plaintiff (Trapani) has appealed from a judgment entered by the trial court at the close of all the evidence, upon the motion of third party defendant (Hillesheim) for a directed verdict. This action was initiated by plaintiff, who is not a party to this appeal, on January 4,1963. Plaintiff was employed by Hillesheim, who was a painting subcontractor of Trapani, the general contractor in charge of construction of a house. Plaintiff’s original complaint alleged that the negligence of Trapani was the proximate cause of the injuries he sustained while on the job. An amended complaint in two counts was then filed by plaintiff adding as an additional party defendant Leo Townsend, a carpenter employed by Trapani, who, it was alleged, lowered the upper sash of a window, causing plaintiff to fall from a ladder on the outside of the house. The second count alleged that Trapani wilfully violated the Structural Work Act. Ill Rev Stats 1961, c 48, §§ 60, 69.

On May 31, 1966, pursuant to leave of court, Trapani filed a third party complaint against Hillesheim, alleging (1) that Trapani’s own actions were merely passive, and if he was liable to plaintiff under the Structural Work Act, it was the result of the active conduct of Hillesheim, and (2) that Hillesheim breached its implied contractual obligation to perform the work with reasonable care and in a workmanlike manner. On July 28, 1966, the court dismissed Townsend as a party defendant, and granted leave to plaintiff to file an amended complaint. Filed that day, the second amended complaint contained no negligence count, but did reallege liability of Trapani based on the statute. On July 29, 1966, Trapani entered into a settlement with plaintiff for $45,000, and, on the same day, filed an amended third party complaint against Hillesheim. The terms of this settlement were included in a second amended third party complaint filed on November 20, 1967, and later amended again. Plaintiff’s action against Trapani was dismissed on May 10, 1968, pursuant to stipulation.

With regard to the facts of the occurrence, Trapani was retained as general contractor to construct a two-story family dwelling in Mount Prospect. He then entered into a subcontract with Hillesheim to do the painting.

Plaintiff (an employee of Hillesheim) testified that he had placed a ladder against the house and, while standing on it, was sanding and puttying the sill and the sash of a second-floor window. The ladder was adjusted to a 15-foot length and was placed with its base about seven feet from the wall of the house. To the best of his judgment, the bottom of the window was 15 feet above ground level. He stated that while he was working on the outside of the window, Townsend (an employee of Trapani) was working on the inside of the window. During the three or four minutes he was positioned on the ladder prior to the fall, he was applying putty to the upper right-hand corner of the window by using his right hand. He was using his left hand to hold himself in a straight position, by resting it on the top center of the upper sash. He testified that he wasn’t sure what rung he was standing on, but his knees were a little lower than the top rung of the ladder. In order to putty the top part of the window, he stepped up one rung, the sash came down about four inches, and he fell backwards off the ladder. He was not in a position to grab hold of any part of the ladder to save himself from falling.

Townsend testified that he was working on the inside of the same window, installing handles on the sash. He had been working there for twenty minutes, during which time he had had a conversation with Wrobel. The sashes on the windows were moved several times during this period. When he had finished work on the lower sash, he pushed it downward. This enabled him to mark the bottom rail of the upper sash to establish a position to insert screws. Then, in order more easily to affix a hardware piece on the bottom rail of the upper sash, he reversed the position of the sashes by raising the lower sash and pushing down on the upper sash so that it came to rest less than half an inch above the window sill, “as far as it would go.” He took out his hammer and awl to drive two holes straight down into the rail of the upper sash. He then started to insert the screw “and by pushing down the window went down a half inch.”

Right after that, he noticed Wrobel outside with his arms in the air trying to reach for something. It appeared that, just before that, he was reaching with a putty knife in his right hand for the upper right-hand comer of the window. Townsend didn’t know where Wrobel’s left hand was and, prior to the accident, he didn’t see his left hand on the sash at any time. He had been standing at about the same height as Townsend on the inside, with their eyes at the same level. After the fall, Townsend rushed downstairs where Wrobel was lying on the ground, Townsend said he was sorry about it, and Wrobel said not to worry because "it isn’t your fault.”

Townsend noticed that the ladder, which was standing against the house, was not directly underneath the window but was placed with its right rail even with the left side of the window. The top of the ladder reached only to the bottom edge of the window. He testified that the customary place to position the top of a ladder is near the top of the window. Also, it is usual, when working on the right side of a window, to place the ladder on that side. Further, the customary stance for a worker would be one in which his shoulders would be approximately even with the top rung, with the body between the two rails of the ladder.

Trapani, a carpenter of 20 years’ experience, and Donald Stewart, a safety engineer, testified that safety standards in connection with the use of ladders indicate that the highest rung on which a person should stand is the fifth from the top. The position of the body should be between the rails. Trapani testified that the bottom of the window was 12' 6" above the ground; and that a ladder fifteen feet long, positioned with its top 12 feet above the ground, would extend 9' 3" from the base of the wall. The expert witness testified that this position would not meet acceptable safety standards.

Trapani seeks to have the judgment of the trial court vacated and judgment entered in his favor based upon two theories of recovery. He contends that, as a matter of law, he is entitled to indemnification from Hillesheim either on the theory of active-passive indemnity or implied contractual indemnity. He also contends, in the alternative, that the judgment should be set aside and the cause remanded for a new trial, because the evidence raised questions of fact under both theories which the jury should have been permitted to decide.

Before addressing ourselves to these contentions, however, we believe it necessary to consider the element of “good faith” with regard to the settlement entered into by plaintiff and Trapani. Hillesheim does not question the amount of the settlement, but argues that it was not made in good faith, since a condition of that agreement required plaintiff to file a second amended complaint omitting reference to any allegations of negligence against Trapani. In explanation, Trapani points out that a settlement where negligence is alleged in the complaint, might be construed or inferentially argued (as it could have been in this case if it had gone to the jury) as a tacit admission of negligence on the part of Trapani. See Sleck v. Butler Brothers, 53 Ill App2d 7, 202 NE2d 64. This, he was attempting to avoid, as he was making settlement payment only on the charge of violating the statute and not on the charge of negligence. We find nothing impermissible in such a transaction, as Trapani had the right to have the pleading on which payment was to be made, reflect only the allegation which was the basis for the settlement agreement. See Krambeer v. Canning, 36 Ill App2d 428, 433, 184 NE2d 747. We consider the case of Grummons v. Zollinger, 240 F Supp 63 (cited by Hillesheim), distinguishable on the facts, which in that case strongly indicated bad faith on the part of the defendant in relation not only to the alleged indemnitor but also in relation to the trial court.

Trapani raises the related issue that Wrobel’s superseded complaint and amended complaint were improperly admitted into evidence over objection. We agree that this constituted serious error in the light of our conclusion above on the issue of good faith. The earlier pleadings themselves are unrelated to the basic issue of indemnification. Their admission into evidence would have been highly prejudicial if the case had gone to the jury.

Trapani has also contended in this court that he was erroneously denied the opportunity to cross-examine or impeach his own witness (Wrobel) when part of his testimony came as a surprise to Trapani’s counsel. See Supreme Court Rule 238, Ill Rev Stats 1967, c 110A, § 238. We need not pass on this point, however, because the same element of essential surprise could not be present at any future proceeding.

With respect to Trapani’s primary contentions urging reversal of the trial court’s judgment, we are confronted initially with the applicability of the Structural Work Act to the instant facts. Sections 1 and 9 of the Act provide that certain enumerated persons, including contractors and subcontractors, have a responsibility to erect ladders in a “safe, suitable and proper manner.” Ill Rev Stats 1961, c 48, §§ 60, 69. Whether a party will be held responsible for any injury occasioned by a wilful violation of the Act or a wilful failure to comply with its provisions, depends upon whether he had charge of the work. See Kobus v. Formfit Co., 56 Ill App2d 449, 206 NE2d 477. There is no substantial dispute but what both parties to this appeal were in charge of the work. Hillesheim’s employee, Wrobel, erected the ladder from which he fell and sustained injuries. Trapani, as general contractor, was in charge of the overall construction and supervised the manner in which the work was being done.

Next, we consider whether there was evidence which, if believed by the trier of fact, would establish a wilful violation of the Act or a wilful failure to comply with its provisions on the part of Hillesheim, and we find that it did. Trapani produced evidence to demonstrate that Wrobel (and through his agency, Hillesheim) violated accepted safety standards in the placement of the ladder : the top of the ladder was beneath, instead of above, the window level; he stood on one of the top rungs of the ladder instead of the fifth from the top; the bottom of the ladder was placed too far away from the wall. All of these factors, when viewed in the light of acceptable standards as testified to at trial, indicate that the ladder had been used in a manner sufficiently unsafe to constitute a wilful violation of the Act by the parties in charge of the work. In so holding, we make no adjudication of the third party claim, since Hillesheim also introduced evidence which, if believed, would establish a violation of the Act on the part of Trapani.

Trapani argues that he is entitled to indemnification since his conduct in violation of the Act was merely passive in nature, while that of Hillesheim was active. In litigation under the Structural Work Act, it is well established that the rule forbidding contribution between tort-feasors is not applicable where it is shown that one is an active wrongdoer and the other has but a passive role. E. g., Rovekamp v. Central Const. Co., 45 Ill App2d 441, 195 NE2d 756. Trapani supports his position through evidence demonstrating that Hillesheim (through Wrobel) placed and used the ladder in an unsafe manner. He argues that his responsibility for the construction project extended merely to general supervision and coordination of the overall project. This, he submits, is sufficient to establish him as the lesser delinquent and Hillesheim as the active delinquent, relying upon Rovekamp, supra, where the court stated at page 449:

Although the liability imposed by the Act does not rest upon negligence, there can be degrees of fault among those who, under the Act, are accountable to an injured plaintiff. Who is the more culpable, a party who supervises and coordinates the overall project, or a party who is responsible for the scaffolding and the particular work which produced the injury? Both are in charge of the work, to be sure, but of different phases of the work. Neither can escape liability to the plaintiff — thus the purpose'of the Act is accomplished — but the lesser delinquent, if held accountable by the plaintiff, can transfer its statutory liability to the active delinquent, whose dereliction from duty brought about the plaintiff’s injury.

Thus, the question squarely presented for our review is whether the evidence supports Trapani’s active-passive theory of the case. See Miller v. DeWitt, 37 Ill2d 273, 226 NE2d 630; Shell Oil Co. v. Hercules Const. Co., 74 Ill App 2d 166, 219 NE2d 392; Hyten v. Kleffman, 31 Ill App2d 273, 175 NE2d 632. Hillesheim contends that the theory cannot be applied because the act of Townsend, Trapani’s employee, was shown to have been a proximate cause of Wrobel’s injury. Wrobel testified that he balanced himself while on the ladder by placing his left hand on the top of the window sash, and that Townsend’s act of lowering the sash a distance of four inches caused him to fall. Townsend acknowledged that he did lower the sash as he was working on it, but only by a half inch. He also testified that while he did not know where Wrobel’s left hand was at the time, he had not seen it resting on the sash prior to the accident.

In our opinion, this conflict in the evidence presented a question of credibility — and, thus, an issue of fact — which could properly have been resolved only by the jury. It relates materially to the factual determination necessary to a correct application of the active-passive rule as a basis for indemnity.

We agree with Trapani that the evidence did not so overwhelmingly favor Hillesheim as to justify the trial court’s direction of a verdict for Hillesheim, under the principle of Pedrick v. Peoria & Eastern R. R. Co., 37 I112d 494, 229 NE2d 504. We therefore conclude that the judgment must be reversed. We do not, however, agree with Trapani’s contention that the evidence was so overwhelming in his favor as to justify reversal with judgment directed against Hillesheim by this court.

Trapani also contends that he is entitled to indemnification from Hillesheim because of the latter’s breach of an implied contractual agreement to perform the painting duties with ordinary care and in a workmanlike manner. Trapani asserts that this doctrine, as set forth in Ryan Stevedoring Co., Inc. v. Pan-Atlantic Steamship Corp., 350 US 124, 100 L Ed 133, has, been amplified in subsequent maritime cases to permit a shipowner to obtain indemnity from a stevedoring company, notwithstanding the owner’s contributory negligence, since the principle of recovery is bottomed in contract rather than tort. Crumady v. The J. H. Fisser, 358 US 423, 3 L Ed2d 413; Italia Soc. v. Ore. Stevedoring Co., 376 US 315, 321, 11 L Ed 732. See, however, Weyerhaeuser S. S. Co. v. Nacirema Co., 355 US 563, 567, 2 L Ed 491, where the court said that a substandard performance of his contract by the stevedore which led to foreseeable liability of the shipowner, would entitle the latter to indemnity “absent conduct on its part sufficient to preclude recovery.”

We believe that the line of eases beginning with Ryan are inapplicable to a building contractor-subcontractor indemnity action of the kind which is before this court. We are supported in this conclusion by the most recent of these maritime decisions (Italia Soc., supra, at page 324), where Mr. Justice White, speaking for the court, stated:

Both sides press upon us their interpretation of the law in regard to the scope of warranties in non-sales contracts, such as contracts of bailment and service agreements. But we deal here with a suit for indemnification based upon a maritime contract, governed by federal law, American Stevedores, Inc. v. Porello, supra, in an area where rather special rules governing the obligations and liability of shipowners prevail, rules that are designed to minimize the hazards encountered by seamen, to compensate seamen for the accidents that inevitably occur, and to minimize the likelihood of such accidents.

Trapani argues that “a majority of jurisdictions, including Illinois, have applied the ‘Ryan Doctrine’ to non-maritime cases,” citing Moroni v. Intrusion-Prepakt, Inc., 24 Ill App2d 534, 165 NE2d 346; Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808; and Parsons v. Kuhne-Simmons Co., Inc., 76 Ill App2d 121, 221 NE2d 168. We find this conclusion to be unwarranted. The reference to the Ryan line of cases occurred only in Moroni, supra, and then only to state the proposition that those enumerated cases have recognized an implied indemnity obligation based upon a duty to perform the contract in a reasonably safe manner. The case did not deal with the possibility of recovery by an indemnitee despite his own negligence or misconduct. No Illinois ease has expressly applied the rules of the Ryan line of decisions to cases arising under the Structural Work Act. We are of the opinion that the maritime cases are of a different genre from the scaffolding cases and for this reason operate on a separate and distinct set of principles.

We take note that under general indemnity principles of this state, when there exists a written contract of indemnity, it will not be construed to indemnify against the indemnitee’s own negligence unless there is a clear expression of intention to that effect, and then such a contract is subject to strict construction. De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240; ILP, Indemnity, § 6 and cases there cited; see also 13 Am Jur2d, Building, Etc. Contracts, § 141.

In Bella Kay Bldg. Corp. v. City of Chicago, 58 Ill App2d 230, 208 NE2d 60, where a written contract of indemnification existed, the court inquired into the relative negligence of the parties, and found that, while the indemnitee may have been passively negligent, the indemnitor was the active tort-feasor, so the indemnitee was permitted to recover. Also, in cases applying the theory of implied contractual indemnity, courts of this state have, at the same time, incorporated therein the criteria of active-passive negligence to determine the right to indemnity. Sack v. Areole Midwest Corp., 33 Ill App2d 344, 347, 179 NE2d 441; Gulf, M. & O. R. Co. v. Arthur Dixon Transfer Co., 343 Ill App 148, 98 NE2d 783. The court in Sack stated its position as follows:

In the absence of an express provision clearly requiring indemnity against one’s active negligence, there is no right to indemnity, express or implied, by an active tort-feasor.

In Moroni, supra, the court found that the facts pleaded by the indemnitee raised a duty and showed a failure to perform by the indemnitor, and that this implicit charge of negligence entitled indemnitee to recover.

While the opinions in these cases may be subject to the criticism that they employ a mixture of terms from contract and tort law, they are, nevertheless, readily understandable and possible of application. Adhering strictly to contract principles, it may properly be said that an indemnitee cannot obtain redress if his own conduct is sufficient to preclude recovery. But recognition of that rule still leaves us without guidelines necessary to determine the character of such conduct. We believe that the borrowing of the “active-passive negligence” concept from tort law is quite useful in the situation presented by the case now before us. While not satisfying the legal purist, it does, by fortunate accident, make available a substantial body of case law which deals with the same— or practically the same — facts of conduct which will, or will not, permit recovery.

We conclude that under the facts and circumstances of this particular case, evidence in a new trial which would determine the rights of the parties under a theory of implied contractual indemnification would necessarily produce the same result under the established rules of active and passive negligence. Our comments, above, on the evidence concerning the active-passive negligence question apply equally, therefore, to the implied contract contention. There remains an issue of fact to be determined.

Accordingly, the judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

STAMOS, P. J. and DRUCKER, J., concur.


author: STOUDER, J.

text:
    Edwin T. Noncek, et al., Plaintiffs-Appellees, v. Ram Tool Corporation, an Illinois Corporation, Defendant, Third-Party Plaintiff-Appellant, v. Cyclone Blow Pipe Company, a Corporation, a/k/a U. S. Blow Pipe and Dust Collecting Co., Third-Party Defendant-Appellee.
    Gen. No. 51,931.
    First District.
    August 21, 1970.
    Rehearing denied November 6,1970.

      William P. Nolan, Pretzel, Stouffer, Nolan & Rooney, of Chicago (Joseph D. Lederleitner, of counsel), for appellant.
    Kralovec, Sweeney, Marquard & Scoby, of Chicago (Henry J. Marquard and Edward V. Scoby, of counsel), for appellee.
   STOUDER, J.

Plaintiff, Appellee, Edwin Noncek, commenced this action in the Circuit Court of Cook County seeking damages for personal injury against Ram Tool Corporation, Defendant, Appellant. Ram Tool Corporation filed a third-party action seeking indemnity from Cyclone Blow Pipe Company, third-party Defendant, Appellee, the latter company being the plaintiff’s employer. The issues were heard by a jury, and at the close of all the evidence, a verdict was directed against Ram Tool and in favor of Cyclone Blow Pipe Company on the third-party action. The jury returned a verdict in the amount of $107,840 in favor of plaintiff Noncek and against defendant Ram Tool Corp. Post-trial motions were denied and Ram Tool has appealed both from the adverse ruling on the motion for directed verdict and from the verdict against it.

On Saturday, August 1, 1964, the plaintiff a sheet metal worker, was sent by his employer, Cyclone Blow Pipe Company, to work at the Sunbeam plant in Chicago. He had worked there many times before, the last time being the preceding Saturday. The job to be done on the day in question was an installation on the exhaust hood at an open plating tank. The exhaust hood was part of a ventilating system designed to carry away the harmful fumes from the vat of copper cyanide. The plating tank was an open tank seventy to ninety feet long, four feet wide and four feet deep. A system of power rails, bars, and posts was attached to the plating tank, enabling racks containing objects to be plated to be lowered into the plating solution so that electroplating could take place. Because of the superstructure, necessary to raise and lower the racks, located above the tank, the hoods could not be located there but, instead, were located inside of the tank just above the surface of the liquid and the fumes were vented through the floor. The job of plaintiff was to install certain prefabricated hinged sections designed to improve the draw of the hoods, such sections being specially designed to avoid contact with the power rails and other structures.

On the day in question, plaintiff started work at the Sunbeam plant at about 7:30 a. m. After working at other jobs during the morning, plaintiff together with a coworker, Oscar Lund, went to the plating room and began work installing the sections referred to. The work consisted of making a dent or dimple with a punch to act as a guide for the drill, then drilling a hold with an electric drill and finally attaching the section with a self-threading metal screw. The day was humid, temperature in the 90’s, and although the electroplating tank was not in operation, the solution was warm and emitting fumes. Plaintiff had been using a quarter-inch electric drill belonging to a Don Kirksler. By four o’clock in the afternoon, he had completed approximately one hundred holes and decided to change drills because the one he was using was hot and the bit was slipping. According to his testimony, he took a one-half inch Ram electric drill from an unopened carton in his tool box, the tools having been supplied by his employer. In doing the work, plaintiff knelt on one knee on a bar running along the inside of the tank. According to plaintiff, after connecting the Ram drill with an extension cord and as he was about to use the Ram drill for the first time, he depressed the trigger, received a shock and both he and the drill fell into the plating tank. The plaintiff was helped out of the tank by Love, a Sunbeam employee who was standing near the tank. Love assisted plaintiff to a nearby emergency shower where the cyanide solution was washed off. Love also pulled the drill out of the plating tank and left it lying on the floor. After the shower, plaintiff was taken to the hospital. As a result of emersion in the copper cyanide solution, plaintiff sustained chemical burns to the right side of his face resulting in total loss of sight in his right eye.

In three counts plaintiff sought recovery on the theory of implied warranty, negligence and strict liability.

In seeking to reverse the judgment entered on the verdict, defendant first argues that it was prejudicial error to admit and refuse to strike speculative and conjectural opinion evidence as to the cause of the shock. Since one of the principal issues was the cause of the shock from the drill, a cause not easily ascertainable, each party presented and devoted a considerable part of the hearing to opinion evidence. Salzenstein, a laboratory testing engineer and Lewis, a university professor, testified for plaintiff. Flood, a laboratory testing engineer and Schiffer, an executive of Ram Tool, testified for defendant.

In arguing that the opinion evidence of plaintiff’s experts was incompetent and, hence, should not have been admitted, plaintiff insists first that the drill which after examination formed the basis of the expert opinions, was not in the same condition as of the time of the incident and second, that the opinions were based on facts not in evidence.

Within five to eight minutes after plaintiff and the drill had fallen into the plating tank and after plaintiff had been helped therefrom, a Sunbeam electrician preparing to leave for the day, heard that a person had fallen into the plating tank and that an electric drill needed checking. He came to the area and found a drill lying on the floor near the tank. After checking the drill with an ohmmeter, he concluded that it was shorted. He then plugged the drill in, pressed the trigger and a “pftt” resulted. He then left the drill lying on the floor near the tank. The drill was then picked up by Lund, the coworker, and including Lund, seven persons testified to their possession of the drill in a connected chain from that date until it was delivered to Salzenstein approximately thirty days later.

Salzenstein testified at length. He described his examination of the drill, taking the handle apart and observing the inside visually and in addition, various parts microscopically. He observed evidence of two shorts, one on the output side of the switch and the other on the input side of the switch. The wire from the output side was multistranded and he observed one strand of the wire which was not under the screw or within the insulated part of the wire and which he hypothesized short circuited through the handle, such condition being causally related to the shock sustained by plaintiff. He also hypothesized that the other short circuit was caused when the Sunbeam maintenance worker pressed the trigger on the drill after it was removed from the plating tank.

Lewis, who examined the drill a few weeks before trial, testified to the same causal relationship between the condition of the drill and the electric shock.

Schiffer, the Ram Tool executive, described and demonstrated the electric drill circuitry and the testing methods employed by defendant.

Flood, defendant’s expert, described experiments which he had conducted with other Ram drills, including emersing the same in the copper cyanide tank at Sunbeam under different conditions. He hypothesized that the short circuits in the drill observed by Salzenstein occurred after the drill had been dropped into the solution and, therefore, the shock could not have been the result of any defect in the drill.

Defendants insist that the drill was not in the same condition when examined by the experts as at the time of occurrence and, therefore, opinions based thereon are incompetent under the authority of Jines v. The Greyhound Corp., 33 IIll2d 83, 210 NE2d 562, LaSalle Nat. Bank v. Feldman, 78 Ill App2d 363, 223 NE2d 180 and Paul Harris Furniture Co. v. Morse, 10 Ill2d 28, 139 NE2d 275. The foregoing cases illustrate factual situations in which the lack of proper foundation or connection between facts involved warranted the conclusion that the evidence was improperly admitted. The facts in each case are substantially dissimilar to those in the instant case and hence, the results in each case are of little assistance by way of analogy.

Concededly, no one examined or tested the drill after it left defendant’s factory and before it was used by plaintiff, the plaintiff having removed it from its original carton. This does not mean that the conditions existing at, and prior to the occurrence were not susceptible of ascertainment. Taylor v. The Carborundum Co., 107 Ill App2d 12, 246 NE2d 898. There is no argument but that a shock may be the result of a short circuit in an electrical system and that subsequent examination of an electrical system may both reveal that a short circuit has occurred and the cause of the short circuit, i. e., the condition existing prior thereto.

In considering whether evidence or opinions based thereon is competent, we are primarily concerned with the probative value of such evidence or testimony. Relevance, in turn, depends upon a reasonable assurance of the physical integrity of the evidence and also a reasonable relationship between the conditions observed and the cause asserted as the basis of liability. See Gass v. Corducci, 37 Ill App 181, 185 NE2d 285.

In the case at bar, we believe the evidence is sufficient to indicate that the drill was not tampered with either inadvertently or otherwise prior to its examination by Salzenstein. Furthermore, Salzenstein’s opinion not only is based on the conditions which he observed but also takes into account the events which took place after the drill was used by the plaintiff. Under such circumstances, we believe that the opinions of Salzenstein and Lewis were based on facts properly received in evidence and the court did not err in failing to exclude their testimony.

Based on the opinions of the experts on behalf of plaintiff, we believe there is ample evidence supporting the conclusion that a defect existed in the drill. Defendants’ argument to the contrary requires disregard of the testimony of plaintiff’s experts and complete acceptance of the contrary opinions of defendants’ experts. The resolution of this issue was appropriately left to the jury.

Defendants next contend the trial court erred in rulings on instructions. At the request of plaintiff and over the objection of the defendants, the court gave the following instruction, “The plaintiffs have the burden of proving each of the following propositions: That the injury or damage was proximately caused by a condition of the electric drill; That the condition of the electric drill was an unreasonably dangerous one; That the condition existed at the time the drill left the manufacturer’s control. If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiffs, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.” (Plaintiff’s Instruction No. 17.)

At the request of defendant and over the objection of plaintiff, the court gave the following instruction, “The plaintiffs have the burden of proving each of the following propositions: First, that the defendant manufactured a drill which had a defect in it, prior to the drill’s passing out of defendant’s possession; Second, that the claimed defect existed at the output, or discharge, side of the switch; Third, that the defect made the drill unreasonably dangerous to the user; and Fourth, that the injuries of the plaintiff were directly and proximately caused by the said defective condition. If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiffs, but, if, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant.” (Defendant’s Instruction No. 9.)

Plaintiff’s given instruction 17 quoted above, is a paraphrase of the court’s language in Suvada v. White Motor Co., 32 Ill2d 612, 210 NE2d 182. Because it is a paraphrase of such language, defendant argues that it was erroneously given on the authority of Spiezio v. Commonwealth Edison Co., 91 Ill App2d 392, 235 NE2d 323. Defendant also argues that a “condition” is not a “defect” and therefore, plaintiffs given instruction creates liability without requiring proof of a “defect” contrary to the basis of a manufacturer’s liability.

The principal sources of jury instructions are pri- or court decisions. Within the context of a particular case, the principles announced by the court may be either too broadly or too narrowly stated to provide that neutrality or generality of principle appropriate to jury instruction. Thus, it is not the paraphrasing which renders the instruction improper but rather that the general principle requires elaboration, refinement or modifiction. An instruction is not erroneous merely because it paraphrases language of a prior opinion.

In Suvada v. White Motor Co., supra, the court deliberately adopted the unreasonably dangerous condition test as the basic principle of product liability. We believe the principles enunciated in Suvada are appropriately embodied in a burden of proof instruction such as plaintiff’s number seventeen. The fact that an instruction similar to defendant’s instruction number nine was held not to be reversible error when given at the request of plaintiff in Dunham v. Vaughan, 86 Ill App2d 315, 229 NE2d 684, does not thereby support the assertion that plaintiff’s instruction in this case is erroneous. The nature of the unreasonably dangerous condition and the issues relating thereto can be adequately set forth in the issues instruction.

We do not approve giving two burden of proof instructions. Osmon v. Bellon Const. Co., 53 Ill App2d 67, 202 NE2d 341. It was the defendant who insisted upon the second burden of proof instruction and it cannot now be heard to complain of any resulting confusion or error.

Defendant next contends that the court erred in unduly restricting its cross-examination of certain of plaintiff’s witnesses. In particular, defendant argues that the court erred in refusing to permit the fact that certain of the witnesses were employees or agents of insurance companies to be shown.

Plaintiff was an employee at the time of his injury and was entitled to workmen’s compensation. Plaintiff’s employer carried workmen’s compensation insurance, and in view of the substantial nature of the possible claim, the insurer undertook an immediate investigation which included the employment of investigators and experts.

Anticipating that defendant might endeavor to impeach certain of plaintiff’s witnesses on account of their employment by an insurance company, plaintiff sought and obtained a pretrial order which prohibited the disclosure of the fact of insurance or questions designed to elicit such facts. The order permitted any witness’ interest or bias to be shown generally, as long as it was not specifically related to insurance.

The facts and procedure employed by the trial court in the case at bar are indistinguishable from those in Sweeney v. Matthews, 94 Ill App2d 6, 236 NE2d 439. The court in Sweeney recognized the desirability of avoiding the prejudice which might be engendered by the disclosure of insurance, as well as the necessity of permitting a witness’ credibility to be appropriately questioned. The court approved a limitation similar to the one in the case at bar as meeting both objectives. See also Guardado v. Navarro, 47 Ill App2d 92, 197 NE2d 469. The trial court’s action was proper.

Defendant next argues that the verdict of the jury was excessive and was based on passion and prejudice. In support of such argument, defendant cites Parnham v. Carl W. Linder Co., 36 Ill App2d 224, 183 NE2d 744, and Campbell v. Chesapeake & Ohio R. Co., 36 Ill App2d 276, 183 NE2d 736, in which verdicts of $60,000 were approved where the plaintiff lost the sight of one eye. It should be observed that in Campbell v. Chesapeake & Ohio R Co., supra, no claim was made that the amount of the verdict was excessive.

Plaintiff was forty-two years of age at the time of the incident, had a life expectancy of 31.6 years. His earnings as a sheet metal worker in the year preceding his injury were approximately $7,000. His hospital and medical expenses were not large. He was not able to resume his previous employment as a sheet metal worker and between the time of his injury and the time of trial, he was unemployed for a substantial portion thereof. At the time of trial his income was approximately $3,000 a year. The evidence also indicates that the hourly rate for sheet metal workers had increased since the date of plaintiff’s injury and his income would have increased had he been able to resume his former employment. It also appeared from the evidence that prior to this incident plaintiff had impaired vision in the eye not injured in this incident.

No principle seems more firmly established in the law than that the determination of damages in a personal injury case is a matter within the peculiar competence of a jury. No arithmetical computation of damages is possible, and the verdict for a particular injury in another case is only of general relevance. The principal question is how a particular injury has or will affect the person sustaining such injury. In Parnham v. Carl W. Linder Co., supra, the verdict of $60,000 was affirmed, even though plaintiff was able to resume his employment and his income was the same or greater than his income prior to his injury.

In the case at bar, we believe that the verdict for $107,840 is within the range of and supported by the evidence. Under the circumstances, plaintiff’s loss of income both past and potential was substantial and when such facts are viewed with the other intangible elements of damage, we do not believe that the verdict can be said to be excessive.

Lastly, we hold the trial court properly directed a verdict in favor of Cyclone Blow Pipe Company, the third-party defendant. The cases cited by defendant, Campbell v. Chesapeake & Ohio R. Co., 36 Ill App2d 276, 183 NE2d 736, Blaszak v. Union Tank Car Co., 37 Ill App2d 12, 184 NE2d 808, Muhlbauer v. Kruzel, 78 Ill App2d 343, 223 NE2d 227 and Boston v. Old Orchard Business Dist., 26 Ill App2d 324, 168 NE2d 52, offer no support for its contention that the evidence supported any theory of indemnity.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

RYAN, P. J. and ALLOY, J., concur.