Commonwealth Elec. Co. v. Rose

• Decision Date: 21 February 1905
• Citation: 214 Ill. 545,73 N.E. 780
• Parties: COMMONWEALTH ELECTRIC CO. v. ROSE.
• Court: Illinois Supreme Court

214 Ill. 545

73 N.E. 780

COMMONWEALTH ELECTRIC CO.

v.ROSE. ^*

Supreme Court of Illinois.

Feb. 21, 1905.

Appeal from Appellate Court, First District.

Action by Mary B. Rose, as administratrix of Joseph H. Rose, deceased, against the Commonwealth Electric Company. From a judgment of the Appellate Court (114 Ill. App. 181) affirming a judgment for plaintiff, defendant appeals. Affirmed.F. J. Canty and J. C. M. Clow, for appellant.

James C. McShane, for appellee.

This is an appeal from a judgment of the Branch Appellate Court for the First District, affirming a judgment for $5,000 rendered against the appellant company in favor of the appellee in the superior court of Cook county in an action on the case prosecuted to recover damages on account of the death of Joseph H. Rose.

The declaration consists of two counts. The first alleges: That on and prior to June 28, 1897, appellant was an Illinois corporation. That the city council of Chicago passed an ordinance granting to appellant the right to construct, maintain, operate, and use on certain streets in Chicago a line of wires or other electric conductors for the transmission and distribution of electricity upon certain terms contained in the ordinance. That a part of said ordinance was as follows: ‘All conductors and wires, owed and operated by the said company under the provisions of this ordinance, shall be properly insulated, and all overhead conductors, used by said company, shall be protected by guard wires of other suitable mechanical device or devices.’ That appellant accepted said ordinance, and under the same conducted an electrical business. That on May 10, 1901, appellant had a certain wire, used as a conductor of electricity, and heavily charged therewith, running north and south on Parnell avenue within said city. That said wire was suspended above the ground upon poles and extended across Sixty-Seventh street. That, by virtue of the ordinance, it was appellant's duty to maintain said wire in a properly insulated condition, and have it protected by guard wires, or other suitable mechanical device, but that it wantonly and negligently permitted said wire to become and remain in an improper and defectively insulated condition, and unprotected by guard wires, or other suitable mechanical device, as required by said ordinance. That Rose was employed as a lineman by the Chicago Telephone Company, which had certain wires running across on poles at the intersection of Sixty-Seventh street and Parnell avenue as aforesaid. That while Rose, in the discharge of his duty, was on one of said telephone poles, and exercising ordinary care, etc., said telephone wire, by reason of appellant's wire not being protected as aforesaid, came in contact with the same, and, by reason of appellant's wire not being properly insulated as aforesaid, it discharged a sufficient current of electricity through the said telephone wire, and into the body of Rose, as to cause him to fall from the pole to the ground, as a result of which he was then and there killed. That he left surviving him a widow, the appellee herein, and three children, his next of kin. The second court charges that it was necessary for the reasonable safety of those who might be required to work with or about said wires, or who should be brought into contact with appellant's said were, that appellant should maintain said wire in a properly insulated condition, but that it wantonly and negligently suffered and permitted its said wire to remain in an improper and defectively insulated condition.

The following are the material facts: Appellee's intestate, who was a lineman in the employ of the Chicago Telephone Company, about 43 years old at the time of his death, met his death at the corner of Parnell avenue, a street in Chicago running north and south, and Sixty-Seventh street, running east and west, in the said city. A line of the Chicago Telephone Company's poles and wires extended along the south side of Sixty-Seventh street, and a line of appellant's electric light poles and wires extended along the east side of Parnell avenue. The appellant's electric light wires passed under the wires and cable of the telephone line, about two feet lower than the lowest telephone wire or cable. There were two of appellant's electric light wires, each carrying a current of 2,000 volts, while on each of the telephone poles there were five cross-arms, each having pins for ten wires. The distance between thes wires on each cross-arm was about 12 inches, except the two next to the pole, which were 16 inches apart to allow for the pole. At the southwest corner of Parnell avenue and Sixty-Seventh street stood one of the telephone company's poles, designated as ‘Pole No. 2.’ One hundred and twelve and three-fourths feet east of this pole was another telephone pole-the one at which deceased was at work-designated as ‘Pole No. 1.’ One electric light pole was 19 feet north of Sixty-Seventh street, while the next one south was 64 feet south of Sixty-Seventh street-which was about 70 feet wide-making these two poles about 153 feet apart. The lowest cross-arm of the telephone poles was 30 feet, and the electric light cross-arm 28 feet and 2 inches above the ground. One of the witnesses states that there was only 1 1/2 feet between the electric light wire and the telephone wire above it. From pole No. 2 to the electric light wires to pole No. 1 was 76 feet. The telephone line crossed the electric light wires at practically the middle of the electric span, which was about 100 feet. There were from 36 to 40 wires on the telephone poles. Stretched along on the telephone poles was a steel cable, or ‘messenger,’ firmly attached to the poles, used to support a large number of telephone wires, inclosed in a lead tube or casing. This was attached to the pole 22 inches beneath the lowest cross-arm of pole No. 1, and 3 feet and 9 inches below the lowest cross-arm of pole No. 2. The cross-arms were about 23 inches apart.

On May 10, 1901, the deceased and four of five other members of his gang left their work at some other part of the telephone lines, and came to the corner above described at about 2:30 p. m.; their aim being to take down tow dead wires, which extended east from the sest side of Parnell avenue to Stewart avenue, and extend a new wire along on the third or middle cross-arm, beginning at pole No. 2, and running east. The plan was to cut off the dead wire, or wire not in use, on the bottom cross-arm of the telephone pole, and attach it to the new wire, and by this means draw the new wire from pole 2 to pole 1; it being the intention to get the new wire across and above the electric light wires. The dead wire, which was on the lowest cross-arm and was to be cut at pole No. 1, was to be taken up to the middle cross-arm about four feet above, and the new wire was to be fastened to it at the west pole, and then the new wire drawn across from pole No. 2 to pole No. 1, and so on. The deceased climbed pole No. 1, which was about 60 to 70 feet east of Parnell avenue, and Clark, another of the men, went up pole No. 2 at the southwest corner of Parnell avenue and Sixty-Seventh street. Clark stood with one foot on the lower cross-arm and the other leg hooked over the next cross-arm above, and in this position on the west side of the pole detached the old wire from the pin on the bottom cross-arm, raised it to the middle cross-arm, and united it to the end of the new wire, and fixed it so as to hold it at that point. The deceased at pole No. 1 stood on the steel cable on the west side of the pole, facing southeast, the wire which they were raising being on the south side of the pole. The deceased waited for Clark to get his end up on the third arm and spliced before going further, and, when Clark finished fastening the new wire to the old, he placed his hand in the loop of the wire, and, holding it that way, placed his hand on the cross-arm, touching a guy wire which was there. Clark said, ‘All right,’ to the deceased who was aleady waiting, and thereupon the deceased cut the wire just west of the cross-arm preparatory to carrying it higher. In some manner, after it was cut, the wire came in contact wit the electric light wire beneath it, and Clark and deceased both received an electric shock. Clark did not receive the full force of the shock, and then only through a small part of the hand, but it made him jump, although he did not fall. The deceased, however, was standing on the cable, which, in turn, was grounded, thus completing a circuit with the electric light and telephone wires. At the same time when Clark received the shock, deceased cried out, ‘Oh!’ and a flash was seen at his end of the wire. After this exclamation deceased was seen by his fellow workmen hanging to the cross-arm with his arms, having lost his foothold. He hung there a few seconds without saying anything further, or being able to regain his footing, and then fell to the sidewalk beneath, and died in a half hour or so afterwards. Upon examination it was found that the telephone wire had been burned in two where it came in contact with the electric light wire.

MAGRUDER, after stating the facts, delivered the opinion of the court.

The facts of this case are settled by the judgment of the superior court of Cook county, and the judgment of the Branch appellate Court for the First District affirming the same, in favor of the appellee. At the close of the appellee's evidence, and again at the close of all the evidence, the appellant asked the court to give to the jury a written instruction, requiring them to find the defendant not guilty. The instruction thus asked was refused, and the only question for us to consider, so far as the evidence is concerned, is whether or not the proof tends to sustain the cause of action.

First. The evidence tends very strongly to show that the appellant company was guilty of negligence, as charged in the declaration. The...