Alton Ry. & Illuminating Co. v. Foulds

• Decision Date: 18 April 1901
• Citation: 190 Ill. 367,60 N.E. 537
• Court: Illinois Supreme Court
• Parties: ALTON RY. & ILLUMINATING CO. v. FOULDS.

190 Ill. 367

60 N.E. 537

ALTON RY. & ILLUMINATING CO.

v.FOULDS.¹

Supreme Court of Illinois.

April 18, 1901.

Appeal from appellate court, Fourth district.

Action by T. L. Foulds, administrator, against the Alton Railway & Illuminating Company. From a judgment of the appellate court (81 Ill. App. 322) affirming a judgment for plaintiff, defendant appeals. Affirmed.John G. Irwin and Henry S. Baker, for appellant.

Travous & Warnock, for appellee.

The appellee, as administrator of the estate of Ellen A. Foulds, deceased, recovered a judgment in the Madison circuit court against the appellant for wrongfully causing the death of his wife, said Ellen A. Foulds. The appellate court for the Fourth district affirmed the judgment, and appellant has, by appeal, brought the record before this court for review. The first count of the declaration, as amended, and upon which, with others of similar tenor and effect, issue of fact was joined, and a trial had, was as follows: ‘For that whereas, the defendant, in the lifetime of the said Ellen A. Foulds, to wit, on or before the 26th day of September, A. D. 1896, was possessed of and using and operating a certain electric light plant and appurtenances pertaining thereto within or near the city of Alton, in the county of Madison and state of Illinois, for the supplying of electric light to the inhabitants of said city for hire and reward, and had wired and installed lamps in the building there occupied by plaintiff and the said Ellen A. Foulds, who was plaintiff's wife, as a residence, for the purpose of lighting said building for a certain reward agreed upon between them, and was then and there supplying electric light to the plaintiff's intestate and her family for reward, and it then and there became and was the duty of the defendant to keep and maintain its plant and appurtenances used and employed in the supplying of the said electric light in good condition and repair, so that the same might be used in obtaining light therefrom without danger, yet the defendant, not regarding its duty in this behalf, carelessly and negligently permitted its said plant, wires, and other conductors of said electric current and appurtenances used in furnishing light to plaintiff and plaintiff's intestate, to become and remain out of repair, and without sufficient insulation, so that the said electric current escaped therefrom and became grounded, and liable to be communicated to persons using said lamp; and while the said Ellen A. Foulds, with all due care and diligence on her part, was in the act of turning on one of said lamps in the basement or cellar of said building upon said 26th day of September, A. D. 1896, through the negligence of the defendant aforesaid in permitting its plant, wires, and other conductors of the electric current and appliances used in supplying said current and light to be out of repair, and without sufficient and proper insulation, whereby said electric current became grounded, as aforesaid, the said current, by reason thereof, then and there passed through the body of said Ellen A. Foulds, and she was thereby then and there killed. And the plaintiff avers that the said Ellen A. Foulds left, her surviving, the plaintiff, her husband, and only next of kin, and that by reason of the death of the said Ellen A. Foulds as aforesaid the plaintiff has been deprived of her society and her help, and has sustained great pecuniary loss and injury.’ The fourth count alleged that the defendant carelessly and negligently suffered the said wires and conductors used in the supplying of said electric current to become and remain out of repair, and the insulation to be worn off and to become imperfect, and the said wires to come in contact with trees, whereby said electric current was communicated to the earth, etc.; proceeding substantially as in the first count. At the close of the plaintiff's evidence, and again at the close of all of the evidence, the defendant moved the court to instruct the jury to return a verdict finding the defendant not guilty, but the court refused to so instruct the jury.

CARTER, J. (after stating the facts).

It is first contended by appellant that the several counts of the declaration are defective, and fail to state a cause of action; that neither count is sufficient to support the judgment. It is not necessary to consider whether the declaration is a good pleading, tested under the rules of pleading by demurrer, but only whether any one of its counts is sufficient, after verdict, to support the judgment. The rule is that, ‘where there is any defect, imperfection, or...