Rowe v. Taylorville Elec. Co.

• Decision Date: 22 December 1904
• Parties: ROWE v. TAYLORVILLE ELECTRIC CO.
• Court: Illinois Supreme Court

213 Ill. 318

72 N.E. 711

ROWE

v.TAYLORVILLE ELECTRIC CO.

Supreme Court of Illinois.

Dec. 22, 1904.

Appeal from Appellate Court, Third District.

Action by Amy Rowe, widow and administratrix of Albert Rowe, deceased, against the Taylorville Electric Company, for the death of plaintiff's intestate. There was a judgment for defendant, and on a writ of error from the Appellate CourtThe judgment was affirmed. The Appellate Court thereupon granted a certificate of importance and an appeal to the Supreme Court. Judgment affirmed.

Sharrock & Grundy and Lane & Cooper, for appellant. Percy Werner (J. E. Hogan, of counsel), for appellee.

CARTWRIGHT, J.

Albert Rowe was employed by the Central Union Telephone Company in the city of Taylorville. On January 4, 1902, the appellee, the Taylorville Electric Company, owned and operated an electric light plant in said city, which had been in operation about eight years. The telephone company had secured a license to erect telephone poles, with wires, on the streets of said city, and on said day Rowe and five other employés of that company were at work stringing wires on poles in North street. The poles were set on the same side of the street as those of the electric company, but were higher. The poles of the electric company were 25 feet high and those of the telephone company 30 feet, so that the telephone wires would be about 5 feet above the electric wires. When the electric wires were not carrying any current of electricity, there was no danger in working above them, but when the current was turned on it was dangerous. They were calculated to carry a current of 1,000 volts, and 500 volts would be fatal to one coming in contact with them. In stringing the telephone wires one of them broke, and Rowe went down a pole and brought it up again. He was on the pole about 25 feet from the ground, stretching the wire, when it came in contact with the parallel electric light wire in which there was a current of electricity, and he received a shock causing him to fall from the pole upon the frozen ground. His hands were badly burned, his neck was broken, and he was dead when his companions reached him. His widown and administratrix, the appellant, sued the appellee in the circuit court of Christian county for damages resulting from his death. In the first count of her declaration she charged defendant with negligence in permitting its current of electricity to escape and be transmitted to the telephone wire which the deceased was handling. The second count charged defendant with negligence in turning on the current of electricity without giving a customary warning by a whistle from its engine. The third alleged that the defendant knew that the employés of the telephone company only did their work when the current was not turned on, and, notwithstanding this knowledge, neglected to give warning of its intention to turn on the current.The fourth charged negligence in using imperfectly insulated wires. The fifth charged negligence generally in constructing, maintaining, managing, and operating the electric light plant. An additional count set forth that it was the custom of defendant to sound a whistle five minutes before turning on its current, and that the telephone employés relied upon such custom, and it charged negligence in turning on the current without warning. The plea was not guilty. At the conclusion of all the evidence the court, at the instance of the defendant, directed the jury to return a verdict of not guilty. A verdict was returned accordingly, upon which judgment was entered. Upon a writ of error from the Appellate Court for the Third District the judgment was affirmed. The Appellate Court granted a certificate of importance and an appeal to this court.

The question to be determined is whether the court erred in not submitting the issue to the jury and in directing a verdict of not guilty. That depends upon whether there was evidence fairly tending to prove a cause of action against the defendant. The evidence tended to prove the following facts: The defendant had operated its electric light plant in the city of Taylorville for eight years, and the wire at the place of the accident was secondhand when it was put up. The insulation of the wire was old and worn generally, and it was off and the wire was bare at a place called a ‘joint,’ where the accident occurred. The electric light current was not turned on at all times, but was turned on at different hours in different seasons and on clear or cloudy days. When it was dark and cloudy, it was kept on all day, and on clear days, at the time of year this accident occurred, it was turned on about 4 o'clock in the afternoon. The day of the accident was clear and bright. It had been the custom of the defendant to blow its whistle about five minutes before turning on the current, to notify its employés, so that if they were doing anything about the wires they would finish it and get away before the current was turned on. The accidentoccurred about 15 minutes before 4 o'clock, according to the watch of one of the men, who looked at it at the time. The telephone men did not expect that the electric current would be turned on the wires until 4 o'clock, and they expected to get through before the current started. There was no signal given before turning on the current on this occasion. Sometimes the telephone men would telephone the electric light plant or secretary and treasurer to learn what time the current would be turned on, but they also depended on hearing the whistle, and were governed as to...