Ferguson v. Southwestern Bell Tel. Co., 71--148

• Court: United States Appellate Court of Illinois
• Writing for the Court: JONES
• Citation: 8 Ill.App.3d 890,290 N.E.2d 429
• Parties: Clyde Robert FERGUSON, Plaintiff-Appellee, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant-Appellant.
• Docket Number: No. 71--148,71--148
• Decision Date: 07 December 1972

Page 429

290 N.E.2d 429 8 Ill.App.3d 890 Clyde Robert FERGUSON, Plaintiff-Appellee,
v.
SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation,
Defendant-Appellant. No. 71--148. Appellate Court of Illinois, Fifth District. Dec. 7, 1972.

[8 Ill.App.3d 891]

Page 430

Pope & Driemeyer, East St. Louis, for defendant-appellant.

Chapman, Talbert & Chapman, Granite City, for plaintiff-appellee; Hugh M. Talbert, Granite City, of counsel.

JONES, Justice:

The defendant appeals from a judgment rendered upon a jury verdict in the amount of $15,000 and the denial of its post-trial motion for judgment notwithstanding the verdict and alternative prayer for a new trial.

The plaintiff was an over-the-road truck driver who resided in Missouri. After delivering a load of pallets in Chicago, he went to Springfield, Illinois, where he loaded pipe which was to be carried to Evansville, Indiana. He drove from Springfield

Page 431

to the Gateway Truck Stop in the vicinity of East St. Louis on Thanksgiving Eve where he joined with friends in food and drink for approximately four hours. He left the truck stop as a passenger in a diesel tractor owned and operated by a friend named Station. Staton drove to another tavern adjoining a public highway. Staton parked the tractor in an area between the highway and the tavern building. When the plaintiff dismounted from the truck, he observed that the diesel exhaust stack had become entangled with an overhead telephone cable. The telephone cable belonged to the defendant. According to a supervising repair foreman for the Bell Company the telephone wire hung between two poles separated by approximately 150 feet and there was 11 feet of clearance from the ground at the low point. [8 Ill.App.3d 892] Under the company practices applicable to this type of situation, the minimum allowable height for such cable was ten feet over walk-ways, driveways and crossings.

When the plaintiff and Staton emerged from the tavern, after the plaintiff had had two or three beers at approximately 10:00 p.m., it was raining. The plaintiff secured a broom from the entranceway of the tavern and climbed upon the wet tractor frame behind the cab and used the broom to raise the cable above the stack pipe of the truck. When Staton backed up the truck, the plaintiff lost his balance, jumped to the ground, and landed upon his hand, dislocating his shoulder. He cried out to Staton, 'you must have tried to kill me.'

The proprietor of the tavern advised that she had called an office of Southwestern Bell Telephone Company to complain that the telephone cable 'was not high enough for trucks to get under.' The company had no record of having received such a complaint call.

The defendant contends that it is entitled to judgment on the basis that the plaintiff was guilty of contributory negligence as a matter of law, based upon Tompkins v. Twin Oaks Dairy, Inc., 91 Ill.App.2d 88, 234 N.E.2d 403, Day v. Barber-Colman Co., 10 Ill.App.2d 494, 135 N.E.2d 231, Withey v. Illinois Power Co., 32 Ill.App.2d 163, 177 N.E.2d 254, and Koch v. Chicago & N.W. Ry. Co., 208 F.2d 152 (7th Cir. 1953) and similar cases. Defendant also contends that defendant's conduct was not, as a matter of law the proximate cause of plaintiff's injury, but instead that the defendant's negligence, if any, furnished a condition which was accompanied by a subsequent independent act of a third person under the rule set forth in Seith v. Commonwealth Electric Co., 241 Ill. 252, 89 N.E. 425 and Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665.

The plaintiff answers arguing that contributory negligence is primarily a question for the jury and for a court to draw inferences deprives the jury of its function as the decider of questions of fact. Plaintiff points out that proximate cause is ordinarily a question for the jury and that with respect to an independent intervening cause, reasonable persons, under the facts presented, could disagree and that the defendant should have known that a result such as was shown by the evidence to have occurred was foreseeable although the precise injury might not have been foreseeable.

Under the evidence shown here it is not possible to harmonize all of the authorities. In the instant case the evidence of the occurrence came almost exclusively from the mouth of the plaintiff himself, the friend Staton not having been called as a witness. This brings us within the purview of the situation set forth in Day v. Barber-Colman Co. [8 Ill.App.3d 893] '* * * when the facts bearing thereon...