Sharp v. Central Illinois Light Co.

• Decision Date: 06 January 1978
• Docket Number: No. 14558,14558
• Citation: 13 Ill.Dec. 749,371 N.E.2d 684,55 Ill.App.3d 1033
• Parties: , 13 Ill.Dec. 749 Diana SHARP, Administrator of the Estate of Robert Dwayne Sharp, Deceased, Plaintiff-Appellant, v. CENTRAL ILLINOIS LIGHT COMPANY, an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 684

371 N.E.2d 684

55 Ill.App.3d 1033, 13 Ill.Dec. 749

Diana SHARP, Administrator of the Estate of Robert Dwayne Sharp, Deceased, Plaintiff-Appellant, v. CENTRAL ILLINOIS LIGHT COMPANY, an Illinois Corporation Defendant-Appellee.

No. 14558.

Appellate Court of Illinois, Fourth District.

Jan. 6, 1978.

Casey & Casey, Edward F. Casey, Springfield, for plaintiff-appellant.

O'Hern, Wombacher, Moon & Boos, John F. Boos, Jr., Peoria, for defendant-appellee.

WEBBER, Justice:

This appeal presents the oft-vexed and always vexing question as to when what is ordinarily a question of fact for a jury may be exalted into a question of law for a court. We do not plan to offer a categorical answer and, indeed, any such answer, here or elsewhere, would be chimerical.

In the case at bar plaintiff's decedent was assisting in placing a six-inch pipe containing a water pump into a well previously drilled on certain premises in Sangamon County. It was necessary to stand the pipe on end in order to slip it into the well hole. The pipe was 21 feet long and in the process of upending and placement in the hole, it came into contact with an uninsulated 7,500 volt primary distribution electric line owned by defendant. The 7,500 volt line was 19 feet above ground level. Plaintiff's decedent was electrocuted.

Plaintiff filed suit alleging negligence on the part of defendant in maintaining its said line in close proximity to a residence and in failing to warn of its existence and in failing to keep it at a proper height.

The discovery process was commenced by way of interrogatories and a deposition; defendant filed a motion for summary judgment based on the deposition of Eurias B. Erwin, who was the father-in-law and employer of the decedent at the time of the accident. Erwin was present when the accident occurred. Also, certain photographs were used in support of the motion.

In pertinent part, the deposition stated that Erwin did not see any power lines about the premises; that he did not look for any; that the rig which drilled the well had a boom 33 feet long and he assumed that there was at least this amount of clearance; that on the day of the accident the sun was very bright and this was the reason he did not look up; that he did not recall looking up nor recall the decedent looking up; that even if he did look up, he probably could not have seen the wires for the sun.

The trial court first denied the motion. It was later renewed on the basis of a Third District opinion in Stambaugh v. Central Illinois Light Co. (1976), 42 Ill.App.3d 582, 1 Ill.Dec. 148, 356 N.E.2d 148, and the court then allowed the motion. The supreme court granted leave to appeal in Stambaugh and upon being apprised of this fact, the trial court vacated its order allowing the motion and continued the cause generally pending the supreme court decision. Later, Stambaugh was settled and the appeal to the supreme court dismissed. Thereupon, the trial court reinstated the order allowing summary judgment in favor of defendant.

It is thus apparent that the trial court's decision, having once denied the motion, was grounded on Stambaugh, and this brings it into collision with our prior decision in Ploense v. Illinois Power Co. (1971), 2 Ill.App.3d 874, 275 N.E.2d 920. Both decisions were by a divided court, thus indicating, if any demonstration be necessary, the delicacy and intricacy of the question presented.

Certain procedural differences exist between the two cases, but we do not deem them controlling. Stambaugh turned on a question of summary judgment (like the case at bar) while Ploense, in part, concerned itself with the refusal of the trial court to direct a verdict on contributory negligence after a jury trial. In either case, the end result is a decision as to whether on the facts presented, either by deposition and affidavit or by trial testimony, contributory negligence on the part of the plaintiff or the plaintiff's decedent exists as a matter of law.

In our view, the answer will depend on the particular facts of each case. It is further our view that a strong presumption exists in favor of submission of the question as a matter of fact to the fact-finder. This is conceded by the Stambaugh court wherein the majority says at page 586 of 42 Ill.App.3d, at page 151 of 1 Ill.Dec., at page 151 of 356 N.E.2d, "While contributory negligence is preeminently a question of fact * * *."

It is unfortunate that we do not have the guidance of a supreme court opinion in Stambaugh. Such an opinion might have resolved the conflicts existing in the electrical wire cases which are extensively cited in both the majority and dissenting opinions in Stambaugh and Ploense as well as in the briefs of the parties in the case at bar. Typical of the cases holding contributory negligence as a matter of law are Withey v. Illinois Power Co. (1961), 32 Ill.App.2d 163, 177 N.E.2d 254 and May v. Illinois Power Co. (1951), 342 Ill.App. 370, 96 N.E.2d 631. Contra, holding it a matter of fact, Stilfield v. Iowa-Illinois Gas & Electric Co. (1960), 25 Ill.App.2d 478, 167 N.E.2d 295, and Humbert v. Lowden (1944), 385 Ill. 437, 53 N.E.2d 418 (the latter case not involving electrical lines).

The most recent supreme court pronouncement on the failure-to-see questions appeared in Spring, Executor v. Toledo, Peoria & Western R.R., 68 Ill.2d 290, 13 Ill.Dec. 686, 371 N.E.2d 621. This involved an automobile-train collision; the jury returned a general...