Cratsley v. Commonwealth Edison Co.

• Decision Date: 23 April 1976
• Docket Number: No. 61412,61412
• Citation: 38 Ill.App.3d 55,347 N.E.2d 496
• Parties: Nelda CRATSLEY, Administrator of the Estate of Raymond Cratsley, Deceased, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 496

347 N.E.2d 496

38 Ill.App.3d 55

Nelda CRATSLEY, Administrator of the Estate of Raymond Cratsley, Deceased, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee.

No. 61412.

Appellate Court of Illinois, First District, Fifth Division.

April 23, 1976.

Mahoney & McArdle, Chartered, Chicago (Michael J. McArdle, Chicago, of counsel), for plaintiff-appellant.

Lord, Bissell & Brook, Chicago (Stephen A. Milwid, Richard E. Mueller and John J. Berwanger, Chicago, of counsel), for defendant-appellee.

BARRETT, Justice:

This appeal involves a suit by Nelda Cratsley as Administrator of the Estate of Raymond Cratsley, deceased, to recover for personal injuries received by the decedent, a city of Chicago sanitation worker, when he came into contact with a high-voltage overhead electrical transmission line of the defendant Commonwealth Edison Company while in the course of his employment in an alley in Chicago, Illinois.

The trial court at the close of plaintiff's case dismissed the strict liability count of plaintiff's complaint and also struck and dismissed certain counts of negligence allegedly committed by defendant. The jury returned a verdict for defendant, and answered 'yes' to a special interrogatory concerning decedent's contributory negligence. Plaintiff appeals from the judgment entered on the jury verdict.

On the night of June 25, 1969 severe thunderstorms passed through the Chicago area with wind gusts in excess of 50 miles per hour. This weather condition caused many transmission wires in the Chicago area to fall. Though the exact time that the electrical wire in question broke and fell is unknown, it appears to have been first noticed hanging in the alley on June 26, 1969 at about 3:30 or 3:45 P.M. by two neighborhood boys. A second broken wire was observed by the boys to be hanging 20 to 25 feet away from the first wire.

A garbage truck on which decedent was employed as a laborer entered the alley at about 4:15 P.M. The truck proceeded along the alley with the laborers emptying cans of garbage at its rear. Raymond Garlanger, the driver of the truck, testified that after the truck had proceeded to about the middle of the alley he observed two small boys standing by some garbage drums holding a small sign which read, 'Danger, live wire.' Garlanger stated that decedent walked from the rear of the truck along the driver's side past the driver's open window at which time Garlanger spoke to decedent saying 'There's a wire hanging there. Be careful. It might be hot.' Though decedent was about one foot away from the side of the truck at the time the driver spoke to him, he nevertheless proceeded toward the wire and reached over his head to grab it with his left hand while using his right hand to flag the truck through. While holding the wire, decedent took a step backwards and came into contact with either a metal garbage can or metal fence. Decedent suffered severe electrical burns, the consequences of which resulted in his ultimate death. Garlanger stated that there had been sufficient clearance for the truck to pass without any movement of the wire.

The wire which was covered with a weather proofing material carried between 2100 and 2400 volts and was strung 30 to 35 feet above the ground before it broke. A Commonwealth Edison Company repair crew reported 'tree contacts' and 'wind' as the cause of the break.

Plaintiff's first contention on appeal is that the court erred in dismissing count four of her complaint which stated a cause of action sounding in strict tort liability. The Illinois Supreme Court in the leading case of Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 adopted the doctrine of strict tort liability which coincided with the view expressed in the Restatement (Second) of Torts, § 402(A) (1965). That section states that:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.'

The substance of plaintiff's allegation in count four of her complaint is that defendant is in the business of manufacturing, transmitting and selling to members of the public electrical energy, including poles, generators, transmission wires and the like; and that these transmission wires are not reasonably safe for their intended use because they are not of adequate strength or thickness or durability to withstand the wear and tear of the transmission of energy or to withstand the amperes of current transmitted by the defendant through the lines. We do not believe that these allegations are sufficient to establish a cause of action based upon strict tort liability. In a recent case involving injuries which were suffered when an electric current arced from power wires to an antenna, our Supreme Court affirmed the dismissal of a strict liability count based upon a failure to state a cause of action, stating that:

'Even if plaintiff's contention were accepted, the doctrine of strict liability would still not be applicable. The power wires were not sold to any consumer, but were owned and controlled by Illinois Power. The only 'product' that was in the process of being sold was the electricity itself, and plaintiff does not contend that there was any defect in the electricity.' Genaust v. Illinois Power Co., Ill., 343 N.E.2d 465.

Similarly, in the instant case the transmission wires remained under the control of defendant, and contrary to plaintiff's allegations, were not sold to any consumer. Moreover, plaintiff does not plead a defect in the electrical current itself, but rather that the weakness of the wire made it impossible for it to withstand the force of the amperes exerted upon it. We find that the trial court properly dismissed count four of plaintiff's complaint for failure to state a cause of action.

Plaintiff asserts in her next point on appeal that the trial court erred in permitting Garlanger to testify that he warned decedent of the wire because there was no evidence that decedent had heard the warning. The credibility of a witness and the weight to be given his testimony is Plaintiff then contends that the trial court committed reversible error in permitting William McDonald, Staff Assistant to the Operating Manager at Commonwealth Edison Co., to testify that defendant had a system of inspection of wires after defendant had stated in answers to interrogatories that it did not know of and had no records of any inspections of the wires.

a matter for the jury to determine and unless the finding of the jury is manifestly against the weight of the evidence, it will not be disturbed on appeal. (Horst v. Morand Bros. Beverage Co., 96 Ill.App.2d 68, 237 N.E.2d 732.) We believe that it was properly left for the jury to conclude whether decedent heard or should have heard the driver's warning. In any event, it was not error.

The interrogatories and answers in question read as follows:

'INTERROGATORY NO....