Economy Light & Power Co. v. Hiller

• Decision Date: 24 October 1904
• Citation: 71 N.E. 1096,211 Ill. 568
• Court: Illinois Supreme Court
• Parties: ECONOMY LIGHT & POWER CO. et al. v. HILLER.

211 Ill. 568

71 N.E. 1096

ECONOMY LIGHT & POWER CO. et al.

v.HILLER.

Supreme Court of Illinois.

Oct. 24, 1904.

Appeal from Appellate Court, Second District.

Action by Frederick Hiller against the Economy Light & Power Company and another. From a judgment of the Appellate Court affirming a judgment in favor of plaintiff, defendants appeal. Affirmed.

Knox & Akin, for appellant Economy Light & Power Co.

Holt, Wheeler & Sidley, for appellant Chicago Telephone Co.

J. W. D'Arcy, for appellee.

This is an action on the case, brought by Frederick Hiller, appellee, against the Chicago Telephone Company and the Economy Light & Power Company, appellants, to recover for personal injuries sustained by him in Joliet, Ill. On the morning of October 23, 1900, the appellee, a boy about 11 years old, was on his way to school in company with several other boys. On the night previous there had been a heavy rainstorm, and an electric light wire belonging to the Economy Company had sagged down until it came in contact with the wire of the telephone company, resulting in the telephone wire burning off and the end of the wire falling to the ground. Two of the boys picked up the loose end of the wire, suffering no injury. Appellee then picked it up and received a severe shock, which knocked him down and rendered him unconscious. Upon a trial a verdict was rendered for $5,000 against both appellants, but subsequently $2,500 was remitted. Judgment was rendered upon the verdict, and defendants prayed and were allowed separate appeals to the Appellate Court for the Second District, where they were heard and decided as one appeal, and the judgment of the circuit court affirmed. From that judgment of affirmance separate appeals are again taken to this court, and two sets of abstracts, briefs, and arguments filed. The appeals have been consolidated in this court. The grounds of reversal urged by the respective appellants are substantially the same.

WILKIN, J. (after stating the facts).

Several questions of fact are urged by counsel for appellants, which have been conclusively settled by the judgment of the Appellate Court. Others are raised, which are settled by the former opinion of this court in a case growing out of the same facts and circumstances. See 203 Ill. 518, 68 N. E. 72.

It is insisted on behalf of appellants that the court erred in refusing to give a peremptory instruction, at the close of the evidence, taking the case from the jury; also, that the judgment cannot be sustained because it is a joint judgment against joint defendants upon a joint cause of action, while the evidence shows that, even though both were guilty of negligence, their liability is several, and not joint. Both of these questions were passed upon and settled by the opinion in the former case. While it may be true that the evidence in that case and this is not exactly the same, yet in so far as it bears upon these questions there is no substantial difference. The rules of law applicable to the facts are the same, and we see no reason for changing the views expressed in our former opinion. The evidence fairly tended to prove the plaintiff's case as alleged.

It is also urged that there is a fatal variance between the negligence charged in the declaration and that established by the evidence. This point is based upon appellants' theory as to the manner in which the accident happened. But that theory is certainly not the only one consistent with the evidence and allegations of the declaration. It charges that appellants allowed their wires to become broken, defective, unsafe, and out of repair; that they carelessly, negligently, willfully constructed and maintained said wires too close to each other; and that they neglected to inspect, examine, and repair the wires, from which cause...