Hayes v. Chicago Tel. Co.

• Decision Date: 20 December 1905
• Citation: 218 Ill. 414,75 N.E. 1003
• Parties: HAYES v. CHICAGO TELEPHONE CO. et al.
• Court: Illinois Supreme Court

218 Ill. 414

75 N.E. 1003

HAYES

v.CHICAGO TELEPHONE CO. et al.

Supreme Court of Illinois.

Dec. 20, 1905.

Appeal from Appellate Court, First District.

Action by Avery R. Hayes against the Chicago Telephone Company and the city of Chicago. Judgment for plaintiff was reversed by the Appellate Court, and he appeals. Affirmed.

Edmund S. Cummings, for appellant.

Holt, Wheeler & Sidley, for appellee.

HAND, J.

This was a suit brought by appellant against the city of Chicago and the Chicago Telephone Company in the superior court of Cook county to recover damages for negligently causing the death of Charles Anderson, appellant's intestate. The declaration charged, in substance, that the defendants were possessed of and using certain telephone poles and wires in a public alley in the city of Chicago; that there were near said telephone poles and wires other poles and wires, which wires were highly charged with electricity; that the said defendants negligently suffered one of said telephone wires to hang loosely from one of the poles used by it, down to and upon and against one of said other electric wires, and down to and upon the ground, and thereby said telephone wire became charged with electricity, and dangerous to any person coming in contact with the same; and that said Charles Anderson, while in the exercise of due care, being entirely ignorant of the fact that said telephone wire was charged with electricity, and having no notice thereof, and in the performance of his duties, took hold of said telephone wire and was killed. The evidence showed that at the time of granting the appellee the right to erect its poles in the alley in question the city of Chicago made the following reservation: ‘That the city of Chicago shall have the right to the top cross-arm of each of said poles free from charge, for the use of the city telegraph and telephone wires.’ It further appears from the evidence that appellant's intestate, who was a garbage collector in the city of Chicago, in the performance of his duties took hold of a wire hanging from one of said poles, which was in contact with a wire belonging to another company, strung on another set of poles, and heavily charged with electricity, and was instantly killed. There was a sharp conflict in the evidence as to which of the defendants was the owner or in control of the broken wire hanging from the pole which caused the death of Anderson. The jury returned a verdict of not guilty as to the city of Chicago and of guilty as to the appellee, and assessed appellant's damages at $3,500. Judgment was entered upon the verdict, and an appeal was taken by appellee here to the Appellate Court for the First district, and that court reversed the judgment of the superior court, without remanding, and made the following finding of fact: ‘That the fallen wire which caused the death of Anderson prior to and at the time of the accident was owned and controlled by the city of Chicago, and was not at any time owned or controlled by appellant, and that appellant was guilty of no negligence which caused or contributed to the death of Anderson.’ This finding of fact by the Appellate Court is conclusive, and this court is bound thereby, and is not permitted to look into the record for the purpose of reviewing the evidence, and passing upon the question as to whether the facts therein contained justify such finding. Davis v. Chicago Edison Co., 195 Ill. 31, 62 N. E. 829. The Appellate Court is not required to recite the evidence, or to find the mere evidentiary facts, but only to find the ultimate facts. Weeks v. Chicago & Northwestern Ry. Co., 198 Ill. 551, 64 N. E. 1039.

While this court is bound by the finding of fact of the Appellate Court, it can consider the question as to whether the Appellate Court has properly construed the law applicable to the facts found by it to exist, and appellant contends that it has erred in so doing. It is insisted that, regardless of the fact appellee has been found not to have been the owner or in control of the fallen wire, and not to have been guilty of negligence, still it is liable, for the reason that it had granted to the city of Chicago the right to use the poles erected by it for its corporate purposes, thereby permitting it to use a portion of its chartered powers; the result of which is to make appellee liable for any...