Austin v. Pub. Serv. Co. of Northern Illinois

• Decision Date: 22 October 1921
• Docket Number: No. 13813.,13813.
• Parties: AUSTIN v. PUBLIC SERVICE CO. OF NORTHERN ILLINOIS.
• Court: Illinois Supreme Court

299 Ill. 112

132 N.E. 458

AUSTIN

v.PUBLIC SERVICE CO. OF NORTHERN ILLINOIS.

No. 13813.

Supreme Court of Illinois.

Oct. 22, 1921.

Error to Appellate Court, Second District, on Appeal from Circuit Court, Will County; Frank L. Hooper, Judge.

Action by Ralph C. Austin, administrator, against the Public Service Company of Northern Illinois. Judgment for plaintiff was affirmed by the Appellate Court (219 Ill. App. 167), and defendant brings certiorari.

Reversed.

See, also, 215 Ill. App. 297.Edgar B. Elder, of Chicago, and Barr & Barr, of Joliet, for plaintiff in error.

Snapp, Heise & Snapp, of Joliet, defendant in error.

THOMPSON, J.

Ralph C. Austin, public administrator of Will county, brought this action against the Public Service Company of Northern Illinois to recover damages for the death of Louis Hertel. The declaration charged that the Public Service Company maintained a certain high tension electric wire heavily charged with electricity, upon, over, and along a certain public highway in Will county, Ill., and that it thereupon became the duty of said company to exercise reasonable care and caution and maintain the wire in such condition as not to injure persons in the use of the public highway in the exercise of ordinary care, but said company, regardless of its duty, negligently and carelessly maintained and permitted the wire to be and remain in a dangerous, exposed, and unsafe condition, and that Louis Hertel, a boy 13 years of age, while being upon the public highway in the exercise of ordinary care, then and there came in contact with the wire so negligently and carelessly maintained by said company, and as a result of the negligence and carelessness of said company said Hertel was instantly killed. The case was first tried at the November term, 1918, of the Will county circuit court, and the trial court, at the close of plaintiff's evidence, instructed the jury to find defendant not guilty. Judgment was entered on a verdict returned in accordance with this instruction, and this judgment was reversed by the Appellate Court for the Second District, and the cause was remanded, with instructions to submit the issues of fact to a jury. The case was tried again at the January term, 1920. A verdict was returned, finding defendant guilty and assessing plaintiff's damages at $5,000. The judgment entered upon this verdict was affirmed by the Appellate Court for the Second District, and the case is brought to this court by certiorari.

A short distance from the city of Joliet Brandon road crosses the Desplaines river over a bridge known as Brandon bridge. The village of Rockdale, a manufacturing suburb of Joliet, with a population of about 1,300, is located along the north bank of the Desplaines river, a short distance west of the north end of this bridge. Brandon bridge is a three-span beam bridge of simple truss type. The south span is 147 feet long. The floor is laid on the lower chord. The upper chord is 21 feet 6 inches above the floor. It is supported at each end by end posts 28 feet long, which stand at an angle of 57 degrees. The end posts and the upper chord are hollow steel beams made by riveting together four pieces of steel. The face of the end posts and the top of the upper chord is 14 inches wide, and is a smooth plate of steel, except that there is a row of smooth, rounded rivet heads along each edge, which stand about half an inch above the surface. There are five perpendicular struts-latticework posts-extending from the lower chord to the upper chord on each side of the south span. The base of the first or south strut is 36 feet north of the base of the inclined end post, and its top is 18 feet north of the corner, where the top of the end post is riveted to the south end of the upper chord. It is 18 feet from the south strut to the next strut north. Cross-beams extend across the top of the bridge from one side to the other, and are riveted to the upper chords at the top of each strut. Tie rods run from the base of each strut to the top of the next strut. On the west side of the bridge the defendant company has bolted on the outside of the top of the second strut from the south end of the bridge a post 14 feet long, which extends 8 feet 4 inches above the top of the upper chord. There is a double crossarm on this post which supports four wires-two on each side of the post. The distance between the two wires located on each side of the post is 15 inches, and the distance between the two sets of wires is 22 inches. The first post south of the bridge is 102 feet 7 inches distant from the post attached to the bridge. At the point where the post is attached to the bridge the wires are 8 feet 4 inches above the top of the bridge. At the point where the top of the south strut joins the upper chord the wires are 7 feet 2 inches above the top of the bridge, and at the top of the south end post the wires are 6 feet 2 inches above the top of the bridge. This shows a sag in the wires of 1 foot 2 inches in the first 18 feet south of the post attached to the bridge and of 2 feet 2 inches in the first 36 feet. The next support for the wires to the north of the post attached to the second strut of the south span is a similar post attached to the second strut of the center span of the bridge, a distance of about 150 feet. It is 36 feet from the post attached to the south span to the south end of the top chord and 72 feet from the post to the north end of the top chord. We have no measurements of the height of the wires above the top of the bridge at points north of this post. Estimating the sag as approximately the same as the sag south of the post, taking into consideration that the stretch north of this post is about 40 feet more than the stretch to the south, the wires would sag to within 4 feet of the top of the bridge at the north end of the top chord of the south span. The inside or east wire was a neutral wire. The second wire from the east-the one directly over the top chord-and the two outside wires, were each carrying 4,400 volts of electricity. These wires were standard No. 4 copper wire, ordinarily used by power companies for carrying heavy currents. They were insulated with ordinary weatherproof braid coating Twelve feet 6 inches below the floor of this bridge the waters of the Desplaines river flowed, and the current is rapid. June 11, 1917, Louis Hertel, a boy within 10 days of 14 years of age, crossed the river on this bridge from Rockdale, where he lived, and went with four other boys to a swimming hole some distance from the bridge on the south side of the river. On the way back to Rockdale the boys discovered a bird's nest at the top of the south strut on the west side of the bridge. Deceased and one of his companions, Frank Gollick, stopped, and the other three boys walked on across the bridge. Deceased climbed the end post by holding to the edges with his hands and placing his toes against the rivet heads. When he reached the top of the post he walked on the top chord to the point where the bird's nest rested, and tore it out. After this he stood up and walked north along the top of the chord for some distance, and then reached up and took hold of the wire directly above the chord with his hands. He was killed instantly. The body dropped into the river below, and was found near Morris about 10 days later.

The principal contention of defendant is that the trial court erred in denying its motion, at the close of all the evidence, to instruct the jury to find it not guilty. This contention is made on the theory that there was no evidence showing that defendant was negligent in the construction, maintenance, and operation of the electric wires in question, and that the evidence showed deceased was not in the exercise of ordinary care for his own safety at the time of the accident which resulted in his death. All controverted questions of fact have been settled by the judgment of the Appellate Court, and we are limited in our review of the case to the determination of the question of law presented by the motion to give to the jury the peremptory instruction. The general rule is that negligence and contributory negligence are questions of fact for the jury, but when the facts are admitted and all reasonable minds agree that the defendant was not negligent in its acts, or that the injury was the result of plaintiff's own negligence, the court may, as a matter of law, find that there was no negligence on the part of defendant, or that there was such contributory negligence on the part of plaintiff as to defeat a recovery, and so inform the jury by a peremptory instruction. Hoehn v....