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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.

The proof in the present case fully negates any concept that defendant"s gratuitous inspections were solely for its own internal purposes, and likewise refutes the allegations in its answer denying that safety inspections had been made, or that it had made regular and periodic inspections. At the time and immediately prior to the date Auchter took out its compensation and public liability policies on the courthouse project, defendant constantly represented that those who insured with it would receive countless extra safety and monetary benefits through the services of defendant"s "safety experts" or "safety engineers." An advertising symbol referred to as "Mr. Friendly" was adopted, and by a series of advertisements placed in both national and trade publications, such representations as the following were made: (1) "In case after case, month after month, American Mutual"s safety engineering service has helped contractors all over the country reduce accidents and costs;" (2) that insureds "have *80 worked hand in hand with American Mutual Safety Engineers to build safety into every job;" (3) after explaining that one insured had saved money, the method was stated to be: "Close cooperation between Hittig Management and American Mutual Safety Engineers in designing and operating an effective safety program;" (4) "Thanks to thorough investigation and hazard analysis * * * and immediate investigations when accidents have occurred, this nationally known firm has been able to maintain a good accident record and to lower operating costs." These are but samplings of many representations that could be stated, but, in general, the tenor of each of the 29 advertisements admitted in evidence was that the safety engineers took an active part in the safety programs of the insureds and saved lives, limbs and money. A former executive of defendant, testifying directly to the function of the safety engineers, stated that it was to help the insureds to reduce accidents and to determine what were or were not unsafe practices. From all of the evidence it appears that defendant"s safety engineers, and the various financial and safety benefits claimed to inure to insureds as a result of their safety engineering services, were its chief stock in trade. Just as certainly, it appears beyond a shadow of a doubt that the services gratuitously given by the engineers were not solely for defendant"s own purposes.

Following each visit formally reported to his employer, McClain, as we have said, also wrote letters to Auchter describing the visits and making representations of which the following are typical: (1) "I plan to again be in Jacksonville within a few weeks and will visit both of the above jobs again as a continuation of our service to you in the control of accident possibility;" (2) "I plan early visits in November to assist your superintendents;" (3) "Continuing our engineering service to you in making your operations safe * * * I made a survey of your operations and from an over-all standpoint found job practices satisfactory from a safety standpoint;" (4) "Continuing our engineering service to you and a maintenance of your loss control program, I called at the jobs in caption;" (5) "To assist you further in your accident control at the job, I suggested to Mr. Hodge that he ground the frame of the builder"s hoist."

Copies of the safety engineer"s inspection reports and surveys, as well as any recommendations made to the insured, were transmitted to various of defendant"s departments, including sales and engineering. A former employee in the sales department testified that if at any time the recommendations were not complied with, the sales department would be requested to contact the risk to see that there was compliance. "Normal recommendations," he said, would not require any action on the part of the sales department, but those of an "urgent" nature would be followed *83 up by the sales manager whose duty it was to see that there was immediate compliance on the part of the insured. Instructions from the home office were that if urgent recommendations were not complied with, cancellation notices would be issued and the risk normally cancelled. The exact action taken by the engineering department with regard to recommendations does not fully appear, but it does appear that, on one occasion at least, McClain went to Auchter"s president when he met with some recalcitrance on the part of Hodge, the project superintendent, and one of the men with whom McClain directly discussed his inspections and findings. On each succeeding visit, McClain would check to see if his recommendations were carried out.

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.

Once in operation the hoist was used to transport building materials and, except for the period during which it was being re-rigged, the uncontroverted proof in the record is that personnel of all categories on the project, laborers, supervisors and company executives, constantly rode on the hoist up to the time it fell. There was evidence that stairways in the building under construction were ill-lit, cluttered with scaffolds, waste and materials, and sometimes closed; and it further appears that the greatest use of the hoist by personnel was at starting and quitting times. On the day of the occurrence, at quitting time, the 18 plaintiffs and another workman got on the platform at fifth floor level. After they had done so, the cable broke and the platform plunged to the ground.

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.

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.

Turning next to defendant"s affirmative defense that the Florida Workmen"s Compensation Act gives it immunity from suit as a third party tort-feasor, it may be said, to use the words of the court in Fabricius v. Montgomery Elevator Co. (Iowa) 121 N.W.2d 361, that the real question presented is whether there is anything in the Florida act which deprives plaintiffs of their right to proceed at common law against the workmen"s compensation carrier for the general contractor. The Florida act expressly preserves the employee"s common-law action against a third party tort-feasor, without stating who shall or shall not be third party tort-feasors, (F.S.A. sec. 440.39(1),) but it may be conceded here, without the need of detailed analysis of the act or the judicial decisions construing it, that Auchter, as the general contractor, is immune from suit as a third party tort-feasor both as to its own employees and the employees of its subcontractors. (See: Brickley v. Gulf Coast Construction Co. 153 Fla. 216, 14 So. 2d 265.) Thus, stated differently, in terms of defendant"s contention, the issue raised is whether defendant, as the compensation carrier for the general contractor, enjoys the tort immunity of its insured. The precise problem has never been passed upon by the Florida courts in the factual setting of this case; however, we find clear-cut decisions treating upon the question of tort immunity under compellingly analogous situations which stand as guidelines to our decision.

One such case is Fabricius v. Montgomery Elevator Co. (Iowa 1963) 121 N.W.2d 361. That, too, was a suit by an employee against his employer"s compensation carrier as a third party tort-feasor, and involved the compensation *102 act of Iowa which, like that of Florida, neither expressly granted tort immunity to the insurer nor made the act the exclusive remedy against the insurer. Also, like the Florida act, the Iowa statute gave the insurer the right of subrogation and lien against any recovery effected by the employee against the third party tort-feasor. In holding that such subrogation and lien provisions did not operate to give the insurer tort immunity the Iowa court stated: "If the employee"s common-law action is taken away from him, what has done so? Certainly it cannot be the insurance policy. We do not find a statute that imperatively compels that result. Because the insurer may be indemnified and subrogated does not compel that result. It does not deal with the subject matter. Likewise, we are not persuaded by the argument the insurer would be placed in the position of suing itself. It is easier to believe the legislature intended the insurer to have a set-off to the extent of compensation paid." (121 N.W.2d at 364-365.) (Emphasis ours.)

There are still other factors which militate against defendant"s effort to gain tort immunity on this basis, not the least of which is the circumstance that as to 17 of the plaintiffs in this case defendant was not the insurer of their employers. Insofar as those plaintiffs are concerned, defendant is thus not possessed of the rights to subrogation, lien, commencement of suit or the other rights upon which its theory hinges. This circumstance, we believe, serves to emphasize the observation in both the Smith, (163 A.2d at 567,) and Fabricius cases, (121 N.W.2d at 364,) that the suits of the nature here prosecuted are not brought against defendant in its status of insurance carrier, or for the negligent performance of something it was required to do under the compensation act, but in its independent status as a tort-feasor for the negligent performance of a completely gratuitous act. Cf. Schulz v. Standard Accident Ins. Co. (D.C. Wash.) 125 F. Supp. 411, 415.

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.

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.

I concur in the minority opinion of Mr. Justice Schaefer. Under the stringent rule adopted by the majority no insurer will hereafter dare offer to perform, or perform, limited inspection services for fear of incurring liability. Undoubtedly such services, though limited, have contributed to the safety of workers and prevented economic loss. Sound policy would seem to dictate that the kind of service rendered by this insurer should be encouraged rather than discouraged.

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3-1. INTRODUCTION. This chapter covers various types of ship"s gear and discusses its safe operation. Terminal operations personnel must know the proper terms and concepts in order to understand this chapter.

3-2. CHAINS, HOOKS, AND SHACKLES. Information on chains, hooks, and shackles is as follows:a. Chains. Chains are used in cargo-handling operations for slinging loads and lashing cargo and as part of the ship"s rigging.(1) Chains are made up of a series of metal links formed into oval shapes and connected through each other. The chain size refers to the diameter of the metal link. Chains will stretch due to overloading and the individual links will bend slightly. Bent links are a warning that the chain has been overload. Overloading could cause the chain to fail. If a chain is equipped with the proper book, the hook should start to fail first, indicating that the chain is overloaded.

(2) Chains are much more resistant to abrasion and corrosion than wire rope; therefore, chains are used where this type of deterioration is a problem. For example, chains are used for anchor gear in marine work where the chains must withstand the corrosive effects of seawater. They are also used as slings to lift heavy objects with sharp edges which would cut wire. A number of grades and types of chains are available.

b. Hooks. There are various types of hooks. The types are as follows:(1) Cargo hooks. Chains, fiber rope, or wire rope can be tied directly to the load. However, for speed and convenience it is much better to fasten a hook to the lifting line. Cargo hooks are shackled to the cargo runners for lifting and lowering drafts of cargo. The hooks most frequently used in cargo-handling operations are the new york cargo hook, the liverpool hook, and the seattle hook. Figure 3-1 shows these three types of hooks.(a) The new york cargo hook is a dropforged steel, natural-colored hook, fitted with a jaw-and-eye swivel.

(2) Sling hooks. Hooks can be used in conjunction with slings in many different ways. They can be shackled, moused or spliced into an eye, placed on the sling before the eyes have been spliced to permit the hook to slide, or used with chain slings. Four general types of hooks available for slings are the slip hook, grab hook, box hook, and the chime or drum hook. (See Figure 3-2).(a) Slip hooks are made so that the inside curve of the hook is an arc of a circle. Cargo handlers may use slip hooks with wire rope, chains, and fiber rope. Chain links can slip through a slip hook so the loop formed in the chain will tighten under a load.

d. Safety and Inspection. There are safety and inspection procedures for chains and hooks. These procedures are as follows:(1) Responsible personnel should inspect chains, including the hooks, at least once a month. Chains that are used for heavy and continuous loading require more frequent inspections. Personnel must pay particular attention to the small radius fillets at the neck of hooks for any deviation from the original inner arc. Each link and hook must be examined for small dents, cracks, sharp nicks or cuts, worn surfaces, and distortions. Those that show any of these weaknesses must be replaced.

(2) When hoisting heavy metal objects using chains for slings, insert padding around the sharp corners of the load to protect the chain links from being cut. The padding may be either planks or heavy fabric. Do not let chains twist or kink when under strain or connect them with bolts or wire; such connections weaken the chain and limit its safe working capacity. Cut worn or damaged links from the chain and replace them with a cold shut link. The cold shut link must be closed and welded to equal the strength of the other links. Small chain links can be cut with a bolt cutter. Large chain links must be cut with a hacksaw or oxyacetylene torch. Inspect chains frequently. Apply a light coat of lubricant to prevent rusting and store chains in a dry and well-ventilated place.

(4) Sling hooks should always be "moused" as a safety measure to prevent slings or ropes from slipping off. Mousing, the binding of hemp or wire across the opening of a hook to prevent it clearing itself, also helps prevent straightening of the hook but does not strengthen it materially. To mouse a hook (Figure 3-4) after the sling is on the hook, wrap wire or heavy twine eight or ten turns around the two sides of the hook. Complete the process by winding several turns of the wire or twine around the sides of the mousing and tying the ends securely.

Figure 3-5. Standing rigging(4) Stays and backstays are heavy wire ropes similar to shrouds, found at the mast where the jumbo boom is located. When they support the mast or king posts from a forward direction, they are called stays; when they support from an aft direction, they are called backstays. Additional stays and backstays may have to be rigged when unusually heavy lifts are being loaded and discharged.

(2) The cargo hoisting wire rope or line reeved through the boom blocks and used for working cargo is the cargo runner. The runner is also called the cargo fall or whip.

Figure 3-6. Running rigging(3) The tackle that raises and lowers the boom is the topping lift. Single and multiple topping lifts are used aboard ships.(a). The single topping lift is a single wire rope 1 1/4 inches or larger running through a single-sheave topping-lift block at the crosstree on the mast or at the top of the king post. One end of the lift is shackled to the head of the boom and the other end to the bail.

(b) The multiple topping lift is a single wire rope reeved through a block at the head of the boom and a block at the masthead and made fast on the topping-lift cleat. The size of the wire depends on the safe working load of the boom, but 5/8- to 7/8-inch wire rope is usually used.

(5) The preventer is a wire rope used in addition to the guys to reinforce against additional strain. The preventer is usually made of 5/8- or 3/4-inch wire rope.

(6) The bail plate (topping lift) is a triangular steel plate with a hole in each corner to which are attached to the topping-lift wire, the bull chain, and the bull rope on a single topping lift.

(13) The guy pendant is a short wire rope with a thimble or socket on each end. Guy pendants are used to attach the guy tackle to the head of the boom and to the deck or bulwark.

(15) Topping-lift blocks are blocks at the head of the boom, the crosstree on the mast, or the top of the king posts through which the topping-lift wire is reeved.

(16) A fairlead is a block, ring, or strip of plank with holds, serving as a guide for the running rigging or any rope to keep it from chafing and as a direct line to a source of power.

(18) The stopper chain is a piece of close-link chain about six feet long composed of links 1/4 to 1/2 inch in diameter. It is used to stop off the multitopping-lift wire when transferring the wire from the cleat to the winch and vice versa.

(2) The control equipment regulates speed in both directions. The master controller is normally a five-speed, drum-type, reversing switch commonly found on modern cargo ships. An additional ON-OFF power switch is located on the controller box.

(4) Most winches are equipped with a solenoid brake on the motor shaft. The brake is set by heavy springs and released by energizing the solenoid coil. When the master controller is moved through the various speed positions to the OFF position, relays are so arranged that dynamic braking occurs for short intervals and then, when the solenoid coil is de-energized, total braking occurs. At least once during every lowering operation, a load going downward at full speed must be retarded and brought to a halt, either when it reaches the deck or when held in the air. Although the speed could be retarded by the friction brake, the frequent wear and tear would require the excessive replacement of brake lining and could necessitate an oversize brake. Dynamic braking on the other hand slows down speed without causing wear on the brake lining and requires the magnetic brake only for final slowing or stopping of the load. For emergency use, a foot-operated brake or other mechanical brake is usually included.

(5) The operation of an electric winch is simple. The speed is determined by the position of the control handle, the amount of runner on the drum, the weight of the load, and the line voltage. In case of an overload, the circuit breaker turns off the electricity, but when the control handle is returned to the OFF position, power is immediately turned on again.

Turn the switch on the control box to the ON position. Before leaving the winch, the operator must make sure the switch is turned off to prevent accidental starting.

3-6. SIGNALS USED IN WINCH OPERATIONS. The winch operator cannot see the draft at all times; therefore, he must depend on the signalman for instruction. The safety and smoothness of the operation depend on the judgment of the signalman and the skill of the winch operator to respond; a team effort is essential.a. Every member of the hatch section must be familiar with the signals used in cargo handling. Each signalman must know the safe methods of slinging cargo and must satisfy himself that the draft is slung properly before giving the winch operator a signal to move it. The signalman must learn to judge the few seconds that elapse between the time the signal is given and the actual stopping of the winch. If allowance is not made for this, accidents may results.

3-7. RIGGING STANDARD CARGO BOOMS. Before a ship may be worked, the booms must be topped (raised), guyed, and properly spotted. Each man in the hatch section should understand the procedures for topping, spotting, and lowering the booms.a. Most of the newer cargo ships are equipped with separate topping-lift winches. Booms can be topped or lowered simply by operating the topping-lift winch. When topping and lowering booms, the hatch foreman must-Ensure that the deck is well policed before rigging begins.

3-8. TOPPING BOOMS. The procedures for topping booms are as follows:a. Multiple-Topping Lift (Booms in Cradles). The procedure for topping booms with multiple-topping lifts when the booms are in cradles is as follows:(1) When topping booms with multiple-topping lifts, the hatch foreman will assign men to winches, guys, runners, topping-lift wire, and cathead. He will also assign one person to overhaul the runner as the boom is topped and assign persons to the outboard and inboard guy.

(2) The hatch gang will lay out guys to proper fittings and lay topping-lift wire along the deck or over the rail. The hatch gang will then place the hauling part of topping-lift wire in a wire rope snatch block and take five turns with topping-lift wire around the cathead in the direction opposite the cargo runner (underneath the cathead). Persons are assigned to clear the topping-lift wire and attend the cathead.

(3) The winch operator will raise the boom to the desired height by putting the control lever of the winch in position for lowering and take in the hauling end of the topping-lift wire which is wound around the cathead.

(4) To secure the topping-lift, the hatch gang will apply the stopper chain using the following procedure:(a) With the stopper chain secured to a pad eye on deck, pass the running end of the chain around the topping-lift wire, making sure that at the completion of the turn, the running end of the chain passes under the standing end of the chain (Figure 3-10, 1).

(b) Run the running end of the stopper chain around the topping-lift wire again, making sure that this turn passes over the first turn (Figure 3-10, 2). The chain"s running end should again go under the standing end at completion of the turn. This completes a double half hitch, rolling hitch, or stopper hitch (Figure 3-10, 3). Holding the stopper hitch tightly in place, take two half hitches above the stopper hitch.

(c) Wind the remainder of the chain around the topping-lift wire so as to bind the half hitches. Have one man hold the chain in this position (Figure 3-10, 4).

Figure 3-10. Steps in applying stopper chain(d) With the turns still on the cathead, slack off the topping-lift wire slowly until the weight of the topping-lift is transferred from the cathead to the stopper chain.

(e) When the chain has the weight of the topping-lift, remove the turns from the cathead and secure the topping-lift wire to the topping-lift cleat by taking three round turns on the cleats followed by three figure eights.

(f) Tie or mouse the figure eights with a piece of rope yarn or wire. The remainder of the topping-lift wire can be coiled loosely around the cleat to keep it off the deck and out of the way.

b. Single Topping Lift (Booms in Cradles). The procedure for topping booms with a single-topping lift when the booms are in cradles is identical to that for multiple-topping lifts with two exceptions:(1) On vessels rigged with single-topping lifts, the catheads are equipped with a fitting to which the bull rope can be made fast. When this fitting is available, the bull rope is secured to it instead of five turns being taken around the cathead.

(c) Remove the bull line from the cathead and coil it around the cleat. It is only necessary to get the bull line off the deck and out of the way since it does not support the topping lift unless the boom is being topped or lowered.

3-9. LOWERING BOOMS. Multiple-topping lifts, single-topping lifts, and guying booms are all used in lowering booms. The procedures for each are listed below.a. Multiple-Topping Lifts. The procedures for lowering booms with a multiple-topping lift are as follows:(1) When lowering booms with a multiple-topping lift, the hatch foreman will assign persons to winches, guys, runners, topping lift, wire, cathead, and stopper chain.

(2) A member of the hatch gang will apply the stopper chain and transfer the wire from the cleat to the cathead, taking five turns in the same direction as the cargo runner (over the cathead).

(3) The hatch gang will remove all the topping-lift wire from the topping-lift cleat, except the three round turns, and carefully surge the topping-lift wire until the stopper chain supports the weight of the boom.

(2) Equalizing guys and preventers. Besides the regular outboard guy on the fixed boom, an additional wire is attached to the head of the boom and led to the deck to act as a preventer. Crews must avoid rigging the preventer so that the guy takes all the stress and the preventer takes stress only if the guy parts.(a) The preventer is usually a single heavy wire while the guy has a manila or synthetic fiber purchase; therefore, the preventer and the guy will not share all loads equally. If the guy and preventer have equal tension under a light load, the guy stretches much more than the preventer under heavy loads so that the preventer has to take most of the increase. Crews can avoid this situation by adjusting the guy under a light load so that there will be a little more tension on it than on the preventer. Under a heavy load, then, the guy will stretch and let the preventer have its share.

Step 6. Equalize the outboard guys and preventers by surging, or slacking off slowly, on the outboard guy until desired tension is obtained. Then secure the outboard guy.

(c) If the guys and preventers are constructed of the same materials, they react to heavy and light loads equally. Therefore, when the guys and preventers are of identical material, the crew must slack off slightly on the outboard guys to equalize the strain, even with a light load. Slack off the outboard guys after the booms have swung inboard and nearly equalized the strain between the outboard guys and preventers. When the guy and preventer cannot be nearly parallel, the guy should be placed in the position of greater stress (more nearly in line with the fall) under most conditions.

(e) While there have been a few instances in which either the guy or preventer parted and the other held, the proper use of preventers has saved many a weak guy. Preventers should be considered useful only in keeping the guy from parting, not in holding the boom after the guy parts. A few vessels have heavy preventers (which are intended to carry the guy load) and very light guys (which are intended only for trimming the booms). Since these guys provide little additional strength, they should not be left slack. The crew should check manila guy purchases regularly since it shrinks when wet and stretches when dry; synthetic fiber lines are not affected by moisture.

(3) Positioning guys. The importance of properly guying booms with respect to the angles of stress cannot be overemphasized, particularly when using married falls. Overstressed guys could result in loss of time, cargo, cargo gear, and lift. Figure 3-12 illustrates three positions of the guy and boom, and Table 3-1 shows how strains vary with these positions. In Figure 3-12, "A" denotes that the guy is in line with the fall, "B" that the guy is at a right angle to the boom, and "C" that the guy is behind the heel as far as it is possible to place it without topping.(a) The greatest drift and the lowest possible strain result when the amidship boom is angled far inboard and the guy is placed at a right angle to the boom (Figure 3-12, boom position 3, guy B).

(4) Topping or jackknifing of booms. Topping occurs when strain is placed on a boom resulting from incorrectly positioned guys. A topping or jackknifing boom can cause considerable damage to the ship"s gear and result in loss of life. Responsible personnel should determine whether or not the guys are properly placed to prevent topping of a boom. Figure 3-18 shows the visual test personnel should use to help determine if booms will top.(a) To determine if the outboard boom can top, sight from the pad eye (Figure 3-18, A) where the lower end of the outboard boom"s outboard guy is secured, to the head of the amidship boom (Figure 3-18, B); if the line of sight passes behind the heel of the outboard boom (Figure 3-18, C) the boom can top. If the line of sight is ahead of the heel and below the outboard boom, it will not top. If the line of sight is ahead of the heel but above the boom, it will top only until it reaches the line of sight.

(2) In discharge operations, responsible personnel attach the cargo to the cargo hook in the center of the hatch. The draft is lifted directly up by the cargo fall of the boom spotted over the hatch. At the same time, the slack in the other fall is taken up. As the draft reaches the desired height above the coaming, the lifting cargo fall is stopped and then slacked off while the fall on the outboard winch continues the lifting operation. This action carries the draft of cargo over the side of the vessel. The outboard winch then lowers the draft to the pier. In loading cargo, the operation is reversed.

c. Ebel Rig. The ebel rig (Figure 3-22) was designed to handle loads up to the full capacity of 5- and 10-ton booms by the burton system, provide for complete power positioning of the unloaded booms, eliminate manual handling of lines, and increase safety. Figure 3-23 shows the arrangement of the topping lift on the 5- and 10-ton booms. The topping lift is offset inboard near the centerline of the ship to control the swinging of the boom in the outboard direction. The hauling part of the topping lift is led down the inboard side of the king post through a lead block to the drum of one of the topping-lift winches mounted on the king post.

(2) This rig can be used to work cargo in the hatch, but unless the coaming is equipped with rollers, the cargo runners will chafe against the coaming wearing out the wire and butting grooves into the coaming.

3-11. RIGGING HATCH TENTS. The definition of hatch tents and the procedures for rigging hatch tents are as follows:a. Hatch tents are large canvas shelters suspended from the heads of the booms to protect cargo and personnel during inclement weather. Hatch tents are frequently used in areas which have a rainy climate. They may also be used for shade during extreme heat, especially when discharging refrigerated cargo. Hatch tents give only particle protection, so when work is discontinued, responsible personnel should ensure that the hat