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WINSTON, STRAWN, SMITH & PATTERSON, and BERCHEM, SCHWANTES & THUMA, both of Chicago, (GEORGE B. CHRISTENSEN, CHARLES J. CALDERINI, DONALD N. BERCHEM, and EDWARD J. WENDROW, of counsel,) for appellee AMERICAN MUTUAL LIABILITY INS. Co.

The 18 plaintiffs in this case brought suit in the superior court of Cook County to recover for personal injuries and wrongful deaths suffered on March 19, 1957, when a temporary construction hoist, being operated in conjunction with the erection of a multi-story courthouse in the city of Jacksonville, Florida, plunged a distance of six floors with 19 workmen aboard. Seven were killed and the remainder were severely injured. Two of the plaintiffs, (we use the term to include plaintiffs" decedents,) were employees of George D. Auchter Company, the general contractor which owned and operated the hoist, while the balance were employees of Auchter"s subcontractors on the project. The actions, later consolidated, were brought against Union Wire Rope Company, manufacturer of a cable that broke, Archer Iron Works, designer and manufacturer of the hoist and a safety device thereon which failed to halt the fall, and American Mutual Liability Insurance Company, the workmen"s compensation and public liability carrier for Auchter, which was charged with the *72 negligent performance of gratuitous safety inspections and safety engineering service.

Following an extended trial, judgments were entered on jury verdicts finding the defendants Union Wire and Archer Iron not guilty, and finding defendant American Mutual guilty and liable for damages assessed in a total amount of $1,569,400. On appeal, both by plaintiffs and American Mutual, the Appellate Court for the First District affirmed the judgments in favor of Union Wire and Archer Iron, but reversed outright the judgments against American Mutual. (Nelson v. Union Wire Rope Corp., 39 Ill. App.2d 73.) We have allowed the plaintiffs" petition for leave to appeal to further review the matter. In addition, we have granted leave to several insurance groups to file a brief as amici curiae.

As a matter of initial concern it is unnecessary in our opinion to completely detail the respective pleadings, proof, arguments and authorities advanced in relation to the issues on review between plaintiffs and defendants Archer Iron and Union Wire. Although we do not necessarily adopt all that is said by the Appellate Court, particularly with respect to its concepts of various rules of evidence, and we do not approve of some aspects of Archer"s presentation in this court, we are in basic accord with the court"s judgments as to these two defendants and see no beneficial purpose in repetition or further analysis of those phases of the litigation. Gould v. Gould, 408 Ill. 526; Kamienski v. Bluebird Air Service, Inc. 389 Ill. 462.

The substance of plaintiffs" complaint against American Mutual, (hereafter referred to as defendant) and the theory they have consistently adhered to, is that the insurance company had gratuitously undertaken to make safety inspections of the practices and equipment of Auchter, its insured, and had carelessly and negligently performed the said inspections, as the proximate result of which plaintiffs were injured and killed. Other specifications charged that *73 defendant had carelessly and negligently failed to detect and report: that the hoist"s safety mechanism was inadequate and defective; that the tower was improperly designed and manufactured in that it did not have sufficient strength to permit the safety device to function; that the cable was in a worn condition; that the hoist was being used for the transportation of personnel in violation of a city ordinance, and that a sheave on the hoist was of improper size in violation of a city ordinance. A concluding specification charged that defendant had negligently failed to warn Auchter against the unsafe practice of permitting personnel to ride on the hoist. In answer, defendant denied that it had undertaken, gratuitously or otherwise, to make such safety inspections, or that such safety inspections of practices, machinery or hoists had in fact occurred, and denied that it had been guilty of negligence of any kind, or in the respects specifically charged. Further, defendant denied that it had made periodic or regular surveys or inspections of the premises or equipment, and while admitting that an employee had made intermittent and infrequent surveys and inspections of the premises, it denied that they had pertained to or included the hoist, and alleged that they were for the sole purpose of keeping itself advised of the risk it had insured. As a first affirmative defense defendant alleged that, because it was the general contractor"s compensation carrier, it was not subject to suit as a third party tort feasor under the Florida Workmen"s Compensation Act; as a second affirmative defense it was alleged that if it had in fact performed safety inspections as plaintiffs charged, it became a subcontractor and was thus immune from tort liability to plaintiffs by virtue of the Florida act.

*75 Our Appellate Court, in considering the doctrine as stated in the Restatement, concluded that it was "properly applicable only in situations involving active negligence, or misfeasance," (39 Ill. App.2d at 129,) an earlier portion of its opinion indicating that it equated the terms "active negligence" and "misfeasance" as meaning the "creation of a risk, or danger," and its belief that defendant here could not be liable for a gratuitous undertaking unless it was guilty of negligence which "caused the hoist to fall." (39 Ill. App.2d at 122.) In this we believe the court was plainly wrong. The language that a volunteer is liable for failure to use such competence and skill as he possesses does not admit to a conclusion that the only duty of the volunteer is to refrain from positive acts of negligence. Moreover, in those cases, subsequently discussed, where insurers have incurred liability as the result of gratuitous inspections of machines and equipment, liability rested upon a breach of the duty to make the inspections with due care, not upon acts which "created" dangers or defects, or which caused the occurrence by which injury was received. (See: Van Winkle v. American Steam-Boiler Ins. Co. 52 N.J.L. 240, 19 Alt. 472; Hartford Steam Boiler Inspection & Insurance Co. (7th cir.), 201 Fed. 617.) As is shown by defendant"s own citation of authority, viz., Viducich v. Greater New York Mutual Insurance Co. 80 N.J. Super. 15, 192 A.2d 596, plaintiffs, to support their actions, had only to show (1) that defendant undertook to make safety inspections and to render safety engineering services under circumstances which created a duty on defendant, owed to plaintiffs, to perform its undertakings with due care, and (2) that the gratuitous undertakings were negligently performed, such negligence resulting proximately in plaintiffs" deaths and injuries. See also: McClure v. Hoopeston Gas and Electric Co. 303 Ill. 89, 96; Devaney v. Otis Elevator Co. 251 Ill. 28, 33.

In Sheridan v. Aetna Casualty & Surety Co. 3 Wash. 2d 423, 100 P.2d 1024, the insurer issued an insurance policy on an elevator, the policy reserving the right to inspection. *78 Thereafter, the insurer made periodic inspections, making reports to the owner and also to the city as an ordinance required. An employee of a tenant in the building was injured by a defective elevator door and brought suit against the insurer, who defended that plaintiff had no rights under the policy and that it was not liable by reason of the inspections made. After reviewing numerous cases holding that the voluntary assumption of a duty renders one liable for its negligent performance, the court concluded (100 P.2d at 1031): "Our conclusion is that respondent"s action is maintainable, not by virtue of any obligation imposed by the policy of insurance, but because of the legal responsibility attaching to its voluntary assumption, as the owner"s agent, of the duty of proper inspection and reporting to the city." To the same effect is Bollin v. Elevator Construction & Repair Co. 361 Pa. 7, 63 A.2d 19.

Defendant"s contention that the element of reliance is essential to its liability to plaintiffs is founded upon the premise that defendant was charged "only with nonfeasance, a failure to report a risk, or dangerous situation, already existing," (39 Ill. App.2d at 122,) and upon the argument that whenever a duty arises from an undertaking, gratuitous or otherwise, the sine qua non for liability for nonfeasance, i.e. the omission to perform the undertaking, is reliance by the person to whom the undertaking was directed or by the person injured. This theory, however, either overlooks or misapprehends that defendant was charged with misfeasance, to-wit, that it gratuitously undertook to make safety inspections of the equipment and practices of its insured, and that it had "carelessly and negligently performed the said inspections on a certain elevator or hoist so that as a direct and proximate result thereof certain plaintiffs were injured and decedents of certain plaintiffs killed." (Emphasis ours.) Defendant was not charged with liability for omitting to perform an undertaking which plaintiffs or Auchter expected or relied upon it to undertake, (see: United States v. DeVane, (5th cir.) 306 F.2d 183; Restatement of Torts, § 325,) but was charged with having undertaken to perform safety inspections, a lawful act, and with having done so carelessly and negligently. (See: Smith v. American Employers" Ins. Co. 102 N. H. 530, 163 A.2d 564; Restatement of Torts, § 323 (1).) By undertaking to act defendant became subject to a duty with respect to the manner of performance. (Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896; Roesler v. Liberty National Bank of Chicago, 2 Ill. App.2d 54, 58-59; Marks v. Nambil Realty Co. 245 N.Y. 256, 157 N.E. 129, 130.) That duty, as we have pointed out, extended to plaintiffs *86 and was a duty to use due care, or as the Restatement of Torts puts it, defendant"s duty was "to exercise such competence and skill as (it) possesses." § 323(1).

Turning to the material facts, Auchter purchased the construction hoist from Archer Iron in late 1955, and erected it at the courthouse project in May, 1956, ten months before the occurrence which led to plaintiffs" actions. The hoist bail, with the platform attached, was raised and lowered by a steel cable and moved along vertical guide rails on each side, the guide rails being attached to the tubular metal pipes which made up the hoist tower. Built into the bail was a device known as a "broken rope safety," consisting of two serrated jaws, or "dogs," opposite the two guide rails. The dogs remained retracted so long as the weight of the car hanging from the cable exerted pressure on the top of the bail, but, through the action of cams and springs, would extend out and engage the guide rails as soon as pressure was released on the cable. The pressure and traction exerted by the dogs on the guide rails was thus supposed to arrest the gravitational fall of the platform. As is explained in greater detail in the opinion of the Appellate Court, a new 3/4-inch cable manufactured by Union Wire was installed, and a one-part line was rigged between the hoist and a drum, activated by a motor, upon which the cable was wound. To accomplish this rigging, two new sheaves furnished by Archer Iron were employed. These *89 sheaves had an outer diameter of 19 inches, and an inner diameter of 16 incres at the bed of the groove. Within a short time after the hoist had gone into operation, Auchter, to slow down the speed of the platform, re-rigged the cable and made a two-part line by affixing a third sheave to the top of the bail. This sheave, which was used and had been obtained from Auchter"s construction yard, had an inner diameter of slightly less than 10 inches. It was in plain view, and easily accessible for inspection.

Following the accident the cable, the sheave added by Auchter, and portions of the hoist tower were sent to the Pittsburgh Testing Laboratories, an impartial testing agency agreed upon by all parties. From tests and inspections made it was the virtually uncontradicted testimony of the experts participating that excessive cable wear due to a faulty sheave and the inadequacy of the broken rope safety device were contributing causes of the tragedy. Examination of the cable revealed that it was practically disintegrated for a distance of 21 feet, and it was ascertained that the break had occurred at a point where the cable passed over all three sheaves. The bed of the groove in the sheave added by Auchter was found to be worn and corrugated in *90 a herringbone pattern, and when measured with a gauge the groove was found to be out of contour due to uneven wear patterns on the groove walls. This condition, according to an expert witness, would subject the cable to abnormal forces and skidding actions which would hasten its wear. Since wire cable bends around sheaves at an angle of 90 degrees, all witnesses agreed that there was a direct relation between cable wear and the size and condition of the sheave, and, in such regard, there was expert testimony that a cable passing over a 10-inch sheave, would wear out 2 1/2 to 5 times faster than one passing over a 16-inch sheave.

Scientific tests of the tower and its broken rope safety device, which we deem it unnecessary to detail, revealed that the forces exerted on the guide rails by the serrated jaws, or dogs, caused the rails to deflect outwards to such a degree that the safety device, with the platform falling from fifth floor level, could halt only a fall of 1300 pounds, which was but 300 pounds in excess of the weight of the hoist platform.

It is plaintiffs" contention that safety inspections made with due care, or which such care and skill as the safety engineer possessed, would have disclosed the dangerous conditions which ultimately caused the hoist to fall. Defendant, which has argued on every conceivable front, contends first that its safety inspections and services did not extend to the hoist, but that McClain made only casual and visual observations of the hoist as a matter of general interest. Considering the evidence most strongly in plaintiffs" favor and giving it every reasonable intendment favorable to them, as we must under the circumstances of the appeal, (Pennington v. McLean, 16 Ill. 2d 577, 582; Seeds v. Chicago Transit Co. 409 Ill. 566, 571,) it is our conclusion that the jury could reasonably find that the scope of McClain"s safety inspections did extend to the hoist.

When queried directly as to the relationship between his periodic visits and the hoist, McClain stated: "I did not inspect this equipment as a man employed by Auchter or as *91 a man employed by any sub-contractor. I was interested in this piece of equipment as it related to the job as a whole, to whatever exposure was on the job. By exposure I mean injury or property damage." His activities bear out these admissions. In June, 1956, on his first visit after the hoist went into operation, McClain did many things which extended beyond casual observation. He determined the kind and operation of the safety device on the hoist; sighted to see if the guide rails, essential to the functioning of the safety device, were in good alignment; ascertained from Hodge that a drop test of the safety device had been made; discussed with Hodge the anticipated loading; determined the size and breaking point of the cable being used; calculated that the cable had a safety factor of seven times loaded capacity; determined the rigging of the hoist and how it had been changed; and discussed with Hodge the lubrication and maintenance of the cable. On the same visit, McClain, by his version, "suggested" to Hodge that the tower be grounded against lightning, although Hodge put it this way: "Early on the job McClain told me to get the tower grounded. I did that." Indeed, the proof shows without contradiction that every recommendation made by McClain was complied with.

On other occasions McClain checked to see if the tower had guy wires to keep it from toppling over, and inspected the brake drums for the presence of oil that might cause the brakes to slip. Further, it appears that he gave his attention to the hoist on every visit after it started operating, his specific testimony being: "On February 12 (the last visit before the occurrence) I made my usual visual observation of the tower. I saw the lift platforms going up and down and they seemed reasonably smooth. I didn"t notice anything out of order. * * * It was my custom when I visited the job to look at the cable between the swivel deflector sheave and the engine. I noticed nothing that gave me any particular concern." And while McClain"s trial *92 characterization of his conduct was "visual observation," the reports he made after each visit, before the question of liability arose, represented that he made inspections and surveys of machine hazards, one report form indicating that the insured was operating two builder"s hoists. In short, the tenor and intendment of all the evidence is that defendant"s gratuitous engineering services did extend to the hoist.

There is uncontradicted evidence in the record, including testimony of McClain himself, that in order to inspect a cable adequately it is necessary to clean off the grease at intervals, to run the hand along the cable feeling for spurs, to use a magnifying glass for close inspection and to use a spike to separate the strands in order to locate breaks in the valley of the rope. Similarly, there is evidence that a complete inspection of a sheave would entail the use of a groove guage, and of a hammer and a magnifying glass to test and seek for cracks. McClain did none of these things. Instead, he merely examined the sheave at the top of bail only insofar as he could see it from the ground and, as noted, only looked at the cable "between the deflector sheave and the motor." An experienced passenger elevator inspector for his company, McClain explained his failure to make a detailed inspection of the cable and sheaves by stating that the hoist was not classified and rated as an elevator. Apropos of this explanation, McClain testified he had been initially told by Hodge that there would be no riding on the hoist, denied that he had ever ridden the hoist or had seen men riding it, and stated that had he known of this practice he would have recommended against it. As opposed to this, two workmen on the project testified they had seen McClain riding the hoist, while Avent, the project manager, Hodge, and two workmen testified that men were riding the hoist while McClain was on the premises. Many impartial witnesses testified that men rode the hoist all day long from the time the hoist went into operation, and it likewise appears that it was the custom in Jacksonville for workmen *93 to ride construction hoists. The jury, whose function it was to determine where the truth lies, could with reason conclude from all of the evidence that McClain knew, or should have known, that personnel were riding the hoist, and in fact using it as a passenger elevator.

As previously stated, a jury of reasonable and fair-minded men could reach the conclusion from all of the evidence that the interest and activity of defendant with respect to the hoist were not limited to its post-accident claim of casual observation, but in fact extended, as McClain once testified, to whatever exposure to injury and property damage attended the operation of the hoist on the project. The *94 Auchter company employed no safety engineer or safety inspector of its own, and this was the company"s first experience with a manufactured metal hoist. As opposed to this, McClain was a trained and practicing safety engineer, and as a qualified elevator inspector was fully aware of the relationship between cable wear and proper sheaves and of the only sure and safe way to inspect both. Under all of the circumstances, most particularly the circumstance that McClain knew, or should have known, personnel were riding the hoist, we think the same jury of reasonable and fair-minded men could conclude that the exercise of ordinary care, or of the skill and competence the safety engineer possessed, would have required McClain to adequately and properly inspect the cable and sheave, or at least to insure that such inspections were being made. In regard to the latter, McClain did ascertain whether defendant"s insured was inspecting the hoist, but clearly made no effort to see that safe and adequate inspections were made. While there was some conflict as to whether Auchter was inspecting the cable at all, the employee who testified that he did so had no special training or instruction, conceded that he did not examine the sheaves, and testified that his cable inspections were accomplished by getting on the platform and merely looking at the cable as the operator slowly ran the platform to the top of the tower and down again. This, according to expert testimony, was tantamount to no inspection at all.

Claiming the privilege of supporting its judgment in the Appellate Court upon any basis appearing in the record, (see: Becker v. Billings, 304 Ill. 190; Hazel v. Hoopeston-Danville Motor Bus Co. 310 Ill. 38,) defendant asserts, admittedly for the first time in this court, that it cannot be guilty of negligence because there is no evidence that a reasonably careful inspection of the cable by McClain would have disclosed that it was unsafe. While it is our opinion there is no proper basis in the record to permit this contention *95 to be made, (see: In re Estate of Leichtenberg, 7 Ill. 2d 545, 548-549,) it is equally untenable on its merits. The whole body of the evidence discloses that the small and defective sheave added by Auchter caused excessive cable wear and damage.

We are in accord with plaintiffs that the jury could also reasonably find from the evidence that McClain, under the circumstances of the case, failed to exercise due care with respect to the safety device on the hoist. The most important circumstances are, again, that McClain, unlike the manufacturer of the hoist, was chargeable under the evidence with knowledge that personnel were riding the hoist, and that McClain was trained and experienced in the matter of testing such devices, whereas Auchter"s employees were not. There is evidence that a proper testing of the safety device would have been to make two drop tests with the platform bearing 120% of the manufacturer"s rated load. As opposed to this, Hodge testified he made but one test and that by merely raising the unloaded platform to a height of six to eight feet and letting it fall. McClain knew the importance of the safety device, and, as previously detailed, once the hoist was put into operation took steps to determine the type of safety device, the alignment of the rails and whether functional tests had been made. He did not, however, concern himself with the adequacy of the test then or later, even though he knew, or should have known, that the hoist was in effect being utilized as a passenger elevator. Had an adequate test been made, and had McClain exercised the safety engineering skill the situation demanded, it would have been discovered that the safety factor of the device was only 300 pounds in excess of platform weight.

Section 440.41 (F.S.A. sec. 440.41) reads as follows: "In any case where the employer is not a self insurer, in order that the liability for compensation proposed by this chapter may be most effectively discharged by the employer, and in order that the administration of this chapter in respect of such liability may be facilitated, the Commission shall by regulation provide for the discharge, by the carrier for such employer, of such obligations and duties of the employer in respect of such liability, imposed by this chapter upon the employer, as it considers proper in order to effectuate the provisions of this chapter. For such purposes (1) notice to or knowledge of an employer of the occurrence of the injury shall be notice to or knowledge of the carrier; (2) jurisdiction of the employer by the Commission or any court under this chapter shall be jurisdiction of the carrier, and (3) any requirement by the Commission, or any Court under any compensation order, finding or decision shall be binding upon the carrier in the same manner and to the same extent as upon the employer."

We think it clear that these sections do not reflect a legislative intent to place primary liability for compensation upon the insurer, or to permit the liability of the insurer to be substituted for the liability of the employer. In the first place, the sections simply do not deal with the subject matter, which was dealt with early in the act when the *107 legislature stated in section 440.10: "(1) Every employer coming within the provisions of this chapter, * * * shall be liable for and shall secure the payment to his employees of the compensation payable under sections." (F.S.A., sec. 440.10(1).) Instead, section 440.41 is, on its face, no more than an administrative provision relating to procedure wherein the legislature has authorized the Florida Commission, as it deems proper, to make regulations whereby the insurer may most effectively discharge the liability "imposed by this chapter on the employer." (Emphasis ours.) Liability is not transferred to the insurer, but an administrative facility is provided whereby the carrier may discharge the liability of the employer. Manifestly, if it had been the legislative intent to make the insurer primarily liable for compensation, there would have been no need to supply an administrative means for the insurer to discharge the insured"s liability. The insurer is substituted for the employer, not as to the liability for and duty to secure compensation placed solely upon the employer in section 440.10, but only with respect to notice, jurisdiction and compliance with commission orders. As the court indicated in Fabricius v. Montgomery Elevator Co. (Iowa 1963) 121 N.W.2d 361, 366, under a comparable situation, such limited substitution for procedural purposes cannot be construed as taking away an employee"s common-law action.

As was true in the Mays, Fabricius and Smith cases, the defendant and amici curiae press the argument that it would be contrary to public policy to permit recovery against a compensation carrier as a third party tort-feasor, contending that the result will be a curtailment of safety inspections to the ultimate detriment of working men and their families. This appeal has been soundly rejected in the cited cases and we see little purpose in repeating or expanding upon the reasoning and logic found in them, except to add that the scope and value of the safety inspections, represented thus in an effort to sustain this contention, are highly inconsistent with defendant"s claims under the negligence phase of the case that the activity of its safety engineer was only "casual observation," for its own purposes. Furthermore, whether we look to the law *111 of Florida or Illinois, such a question of public policy is for the legislature not for the courts. General Properties Co. v. Greening, 154 Fla. 814, 18 So. 2d 908; Illinois Western Electric Co. v. Town of Cicero, 282 Ill. 468; People ex rel. Carruthers v. Cooper, 404 Ill. 395.

The Appellate Court, having found that no common-law action was proved against defendant and apparently considering its treatment of the affirmative defense as decisional, declined to pass upon "certain trial errors," (39 Ill. App.2d at 135,) advanced by defendant as entitling it to a new trial. Defendant, relying upon Foreman v. Holsman, 10 Ill. 2d 551, People ex rel. Hahn v. Hurley, 9 Ill. 2d 74, and similar decisions, now insists that the cause be remanded to the Appellate Court "to pass upon serious issues that were not passed upon by the Appellate Court, particularly the errors assigned by American Mutual for a new trial." Upon leave granted plaintiffs, the briefs of the parties presented in the Appellate Court have been filed with the record here, (Cf. Chicago City Railway Co. v. Schmidt, 217 Ill. 396,) and within its reference to "serious issues" we presume defendant includes the questions of privity, control of premises and public policy which, although fully briefed and argued in the Appellate Court, were not resolved or touched upon in its opinion. However, under the privilege accorded defendant to sustain the judgment of the Appellate Court upon any ground justified by the record, (Mueller v. Elm Park Hotel Co., 391 Ill. 391, 398-399; Becker v. Billings, 304 Ill. 190, 205) it has fully briefed and argued those issues here and we have decided them. As to those issues, therefore, there is no need or purpose for remandment. Plaintiffs, pointing to the manner in which defendant has here presented some of the issues not passed upon by the Appellate Court while omitting others, contend that the latter have been waived and charge defendant with "preserving" some of the errors not passed upon by the Appellate Court in an effort to *112 maintain a basis for remandment against the eventuality of reversal by the court. We think this contention is not entirely devoid of merit. However, putting this feature with other circumstances of the case, we believe our jurisdiction and discretion are best exercised by considering the trial errors urged by defendant and finally disposing of the case. Particularly is this true, since they present questions of law rather than determinations of fact which would require us to remand. See: Armstrong Paint and Varnish Works v. Continental Can Co., 301 Ill. 102, 111; Logan v. Mutual Life Ins. Co. of New York, 293 Ill. 510, 514-515.

It is abundantly clear that this court possesses the power and jurisdiction to determine the remaining issues. Section 75 of the Civil Practice Act provides that judgments of the Appellate Court are final, except when a certificate of importance is granted by that court or leave to appeal is granted by this court, and then continues: "In any such case as is hereinbefore made final in the Appellate Court it is competent for the Supreme Court to grant leave to appeal for its review and determination with the same power and authority in the case, and with like effect, as if it had been carried by appeal to the Supreme Court." (Ill. Rev. Stat. 1961, chap. 110, par. 75(2); emphasis ours.) Again in section 92 of the act, entitled "Powers of reviewing courts," it is provided: "(1) In all appeals the reviewing court may, in its discretion, and on such terms as it deems just, * * * (e) Give any judgment and make any order which ought to have been given or made, * * * that the case may require." (Ill. Rev. Stat. 1961, chap. 110, par. 92(1)(e); emphasis ours.) Further it has frequently been indicated that where this court acquires jurisdiction for any reason, it has jurisdiction to pass upon all questions, except those requiring a weighing of the evidence, proper to be passed upon and disposed of in the case. (Goodrich v. Sprague, 376 Ill. 80; Bowman v. Illinois Central Railroad Co., 11 Ill. 2d 186.) Aside from considerations *113 going to the avoidance of multiplicity of appeals, there are in our opinion unique circumstances here which, as a matter of discretion and justice, impel us to use our powers on review to the utmost and to finally dispose of the case.

Prior to the occurrence here the city of Jacksonville, *114 Florida, passed an ordinance which adopted by reference a building code known as the "National Building Code," and also an ordinance adopting by reference the "American Standard Safety Code for Elevators, Dumbwaiters and Escalators" compiled by the American Standards Association. These ordinances were introduced in evidence by plaintiffs, and counsel for plaintiffs and the co-defendants Union Wire and Archer Iron were permitted to read portions thereof to the jury, over repeated objections by defendant American Mutual, first, that neither code applied to construction hoists, and second that the ordinances were invalid and did not come into effect because a State statute had pre-empted the field of elevator regulation. The ruling on this evidence is complained of, the defendant raising the same contentions on appeal. The first point, however, was not raised in defendant"s written motion for a new trial so as to preserve it for review and will not be considered. Where a party files a motion in writing for a new trial, specifying therein the grounds or reasons for such motion, he will be restricted, in a court of review, to the grounds or reasons specified in such written motion and will be deemed to have waived all other grounds or reasons for a new trial. (County Board of School Trustees v. Batchelder, 7 Ill. 2d 178, 183-184; Lukich v. Angeli, 31 Ill. App.2d 20, 28.) As the matter comes to us, the ruling of the trial court that the ordinances had application to construction hoists cannot be questioned.

As a general rule any statement, written or not, made by a party or in his behalf which is inconsistent with his present position may be introduced in evidence against him. (Conrad, Modern Trial Evidence, vol. 1, sec. 454; Cleary, Handbook of Illinois Evidence, sec. 13.10; Brown v. Calumet River Railway Co., 125 Ill. 600.) Where the question has arisen, authorities are in accord that advertisements, brochures, newspaper items, catalogs, and the like are admissible and relevant to the subject matter of the suit where they contain statements of a party inconsistent with a claim or a position asserted by such party in the action. (Henkle v. Smith, 21 Ill. 237; 20 Am. Jur. Evidence, 1960 Supp. p. 152; 44 A.L.R.2d 1031; Hartford Steam Boiler Inspection & Insurance Co. v. Pabst Brewing Co. (7th cir.) 201 F. 617, 629; Fryer v. New York Brokerage Co. 152 Iowa 688, 133 N.W. 110; cf. Mahlstedt v. Ideal Lighting Co. 271 Ill. 154.) In the present case the scope and purposes of the visits of defendant"s safety engineers as alleged in its answer to the complaint were completely inconsistent with *116 its representations in the advertisements. Under the rule stated above, the advertisements became relevant and material and were properly admitted into evidence.

Defendant pleaded as a defense that plaintiffs "without the exercise of due care for their own safety, voluntarily assumed the risk" of riding the hoist alleging they knew it was unsafe for the transportation of passengers because of the "total absence" of handrails, barriers, gates and other safeguards, because of the nature, design and construction of said materials hoist, and because of its location on the exterior of the building and it was not enclosed within a shaft. Error is now claimed because the trial court struck this defense on plaintiffs" motion, made at the close of plaintiffs" evidence, and because it denied defendant"s motion, *117 made at the close of all the evidence, to vacate its order. Some merit attaches, we believe, to plaintiffs" assertion that defendant"s pleading erroneously commingles the doctrines of contributory negligence and assumption of the risk. (See: Byers v. Gunn, (Fla. 1955) 81 So. 2d 723, 727; Florida Gravel Co. v. Davis, 126 Fla. 64, 170 So. 660, 663.) However, it is enough to say that the defense was properly stricken when we look to the controlling Florida decisions. In Bartholf v. Baker, (Fla. 1954) 71 So. 2d 480, 483, it was said: "Voluntary exposure is the bed rock upon which the doctrine of assumed risk rests. Appreciation of danger is an essential to the defense of assumption of the risk, * * * as is knowledge of the condition which creates the risk." (See also: City of Williston v. Cribbs, (Fla. 1955) 82 So. 2d 150; Wilson-Toomer Fertilizer Co. v. Lee 90 Fla. 632, 106 So. 462, 465-466; Gallespie v. Thornton, 95 Fla. 5, 117 So. 714, 717.) Here, there was neither pleading nor proof that plaintiffs had knowledge of the unsafe cable and sheaves or of the inadequate safety devices which created the risk. Without knowledge of such defects, and a condition of mental willingness to ride the hoist despite them, plaintiffs cannot be said to have legally assumed the risk. Smith v. Kelly, Inc. (D.C. cir.) 275 F.2d 169; Youngblood v. Beck Co. 93 Ga. App. 451, 91 S.E.2d 796.

For the reasons stated the judgment of the Appellate Court is affirmed insofar as it relates to defendants Union Wire Rope Corporation and Archer Iron Works. As to the defendant American Mutual, however, its judgment is reversed and the judgments of the superior court in favor of plaintiffs are affirmed.

I concur in the opinion of the court with respect to its disposition of the actions against Union Wire Rope Corporation and Archer Iron Works, but I dissent from its disposition of the action against American Mutual Liability Insurance Company.

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Other artifacts that will help archaeologists further identify and date the shipwreck include ceramic dinnerware, glass bottles, stoneware jugs, an anchor, wire roperigging, a windlass, and a ship"s bell, reported NOAA.

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