Harris v. Algonquin Ready Mix, Inc.

• Decision Date: 27 November 1974
• Docket Number: No. 46133,46133
• Citation: 59 Ill.2d 445,322 N.E.2d 58
• Parties: Richard HARRIS, v. ALGONQUIN READY MIX, INC., et al., Appellees. Appeal of COMMONWEALTH EDISON CO.
• Court: Illinois Supreme Court

Page 58

322 N.E.2d 58

59 Ill.2d 445

Richard HARRIS, v. ALGONQUIN READY MIX, INC., et al., Appellees Appeal of COMMONWEALTH EDISON CO.

No. 46133.

Supreme Court of Illinois.

Nov. 27, 1974.

Rehearing Denied Jan. 28, 1975.

Kirkland & Ellis, Chicago (Cornelius J. Harrington, Jr., and Gary M. Elden, Chicago, of counsel), for appellant Commonwealth Edison.

Philip H. Corboy and James P. Chapman, Chicago, for appellee Richard Harris.

Schaffenegger & Watson, Chicago (Jack L. Watson, Chicago, of counsel), for third-party defendant-appellant Pre-Cast Building Section, Inc.

Baker & McKenzie, Chicago (Francis D. Morrissey, Thomas F. Bridgman, and Peter J. Mone, Chicago, of counsel), for third-party plaintiff-appellee Algonquin Ready Mix, Inc.

KLUCZYNSKI, Justice.

Plaintiff, Richard Harris, was an employee of Pre-Cast Building Sections, Inc. (Pre-Cast). He was severely injured when a crane he was standing near transmitted an electrical charge from an overhead, high-voltage power line of Commonwealth Edison Company (Edison) that had not been insulated. Harris filed an action for negligence in the circuit court of Cook County against Edison, premised on its failure to properly maintain the transmission lines and to warn of the danger created by the lines, and against Algonquin Ready Mix, Inc. (Algonquin), the owner of the land on which the crane was operating, for its failure to warn of the danger. Edison and Algonquin then filed third-party indemnity actions against Pre-Cast, basically alleging that any wrong doing on their part consisted of passive negligence and that Pre-Cast's active and primary negligence was the proximate cause of the accident. Edison additionally filed a counterclaim against Algonquin for indemnification upon the same theory (active-passive negligence) advanced in its third-party action. A jury returned a verdict on behalf of plaintiff against Edison and Algonquin for $300,000. The jury also found in favor of Algonquin and Pre-Cast on Edison's respective counterclaim and third-party action. Finally, the jury returned a verdict for $40,000 on behalf of Algonquin against Pre-Cast in the former's third-party action, but that amount was increased to $300,000 by the trial court upon Algonquin's motion.

On appeal by Edison, Algonquin and Pre-Cast, the appellate court affirmed plaintiff's judgment against Edison but reversed plaintiff's judgment against Algonquin, holding that on the evidence presented the trial court should have granted Algonquin's motion for a judgment notwithstanding the verdict. The appellate court further affirmed the judgments against Edison on its counterclaim and third-party action. And, finally the judgment in favor of Algonquin in its indemnity action against Pre-Cast was reversed. (Harris v. Algonquin Ready Mix, Inc., 13 Ill.App.3d 559, 300 N.E.2d 824.) Only Edison petitioned for leave to appeal, which we granted.

The only issues raised by Edison concern the validity of the appellate court's judgment N.o.v. in favor of Algonquin and the related subsidiary issue of whether the trial court erred in preventing introduction of evidence of a prior incident involving contact by a crane owned by Pre-Cast with overhead electrical wires which caused a power failure. Edison asserts that Harold Anson, an officer of both Pre-Cast and Algonquin, could have known of this incident and therefore been aware of the danger which could exist in the operation of a crane near the wire which might be used as a high-voltage transmission line. Edison concludes that had this evidence been presented, Edison may have prevailed in its counterclaim againt Algonquin. Edison has expressly waived other possible assertions of error it might have raised.

We need only recite those facts necessary for disposition of this appeal. On August 14, 1964, plaintiff was standing near a crane which was operating at the southern edge of Algonquin's property in McHenry County. Pre-Cast was dumping concrete slabs on the property to be used apparently as landfill. Plaintiff took hold of a slab being hoisted by the crane in an effort to position it when the crane 'boom' either scraped or came too close to the uninsulated power line, creating an electrical arc. The transmission line carried about 35,000 volts of electricity. As a result of the electrification, plaintiff suffered extensive burns, impairment of his walking ability and amputation of his right arm.

At trial evidence was presented that no signs were posted in the area to warn of the dangerous condition of the wire. Further testimony established that two Edison line patrolmen knew that cranes were being operated in the area, yet they gave no warning of the danger although it was their responsibility to do so.

We do not believe exclusion of the testimony relating to the possibility of a prior contact of the electrical wires by a Pre-Cast crane was prejudicial as to Edison's counterclaim for indemnity against Algonquin. Throughout Edison's briefs filed in this appeal it has taken the position that had this evidence established that Algonquin knew or should have known the dangerous condition that was created when a crane was operating near the uninsulated, high-voltage transmission line, then it was under a duty to warn crane workers of the danger. Edison further characterizes the basis of its liability singularly on the fact that 'its inspectors examined wires on the Algonquin property several months before the accident and saw the Pre-Cast cranes which were being used near Edison wires.' During oral argument of this cause, Edison's counsel has conceded that it was liable by reason of the failure of its line inspectors to warn of the danger. Citing Merlo v. Public Service Co. of Northern Illinois, 381 Ill. 300, 45 N.E.2d 665, Edison urges that had it not been for the inaction of its line inspectors then it would not be liable as a matter of law.

The parties herein do not question prevailing law which holds that a tortfeasor may seek to impose indemnity upon another wrongdoer if there exists a 'qualitative distinction between the negligence of the...