Stilfield v. Iowa-Illinois Gas & Elec. Co.

• Decision Date: 02 May 1960
• Docket Number: Gen. No. 11276,IOWA-ILLINOIS
• Citation: 25 Ill.App.2d 478,167 N.E.2d 295
• Parties: Charles M. STILFIELD, Plaintiff-Appellant, v.GAS AND ELECTRIC COMPANY, an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 295

167 N.E.2d 295

25 Ill.App.2d 478

Charles M. STILFIELD, Plaintiff-Appellant, v. IOWA-ILLINOIS GAS AND ELECTRIC COMPANY, an Illinois Corporation, Defendant-Appellee.

Gen. No. 11276.

Appellate Court of Illinois, Second District, Second Division.

May 2, 1960.

Rehearing Denied June 6, 1960.

Herbert M. Spector, Rock Island, for appellant.

Graham, Califf, Harper & Benson, Moline, for appellee.

SOLFISBURG, Presiding Justice.

This is an action to recover damages for personal injuries sustained by the plaintiff, Charles M. Stilfield, as a result of the alleged negligence of the defendant corporation in transmitting electric current. The case was tried before a jury in the Circuit Court of Rock Island County, Illinois, and a verdict was returned for the plaintiff in the sum of $17,830. The defendant filed a post-trial motion asking the trial court to enter a judgment n. o. v. in its favor and alternatively asking for a new trial. The trial judge entered a judgment n. o. v. in favor of the defendant, accompanying his ruling with a short opinion wherein he found that the plaintiff was guilty of contributory negligence as a matter of law. Thereafter, the trial judge ruled conditionally upon the alternative motion for a new trial, pursuant to Paragraph 68.1(6) of the Civil Practice Act (Ill.Rev.Stats., Chapter 110, Section 68.1(6)), and likewise granted the motion for a new trial. This ruling was also accompanied by a short opinion in which the trial judge stated that, since the ruling on the motion for judgment n. o. v. was based on a finding by the court that the plaintiff was guilty of contributory negligence as a matter of law, therefore, the jury's verdict must have been contrary to the manifest weight of the evidence and on this ground the motion for a new trial must be allowed. The trial judge noted in this second opinion that he found no merit to the other grounds filed in support of the defendant's alternative motion for a new trial. It is from these two rulings on the defendant's posttrial motion that plaintiff appeals.

The first question presented by this appeal concerns the propriety of the trial court granting to defendant judgment notwithstanding the verdict. The applicable principles in passing upon a motion for judgment n. o. v. have been stated innumerable times. This motion presents only a question of law as to whether, when all the evidence is considered, together with all reasonable inferences from it, in its aspect most favorable to the plaintiff, there is a total failure or lack of evidence to prove any necessary element of the plaintiff's case. If there is any evidence tending to sustain every element of the plaintiff's case necessary to be proved to sustain the cause of action, it is immaterial upon which side the evidence is introduced. No contradictory evidence or other evidence of any kind or character will in such case justify a judgment n. o. v., except uncontradicted evidence of facts consistent with every fact which the evidence for the plaintiff tends to prove, but showing affirmatively a complete defense, Lindroth v. Walgreen Company, 407 Ill. 121, 130, 94 N.E.2d 847; Merlo v. Public Service Company, 381 Ill. 300, 311, 45 N.E.2d 665; Marquardt v. Cernocky, 18 Ill.App.2d 135, 138, 151 N.E.2d 109, 67 A.L.R.2d 956; King v. Mid-State Freight Lines, 6 Ill.App.2d 159, 162, 126 N.E.2d 868. This requires consideration of the evidence but precludes any examination of the weight or credibility of the evidence in order to determine its preponderance. It is wholly immaterial on which side the weight of the evidence preponderates, Nelson v. Stutz Chicago Factory Branch, Inc., 341 Ill. 387, 173 N.E. 394.

Accordingly, we turn our consideration to an analysis of the evidence in all its aspects most favorable to the plaintiff. Plaintiff was an employee of Blackhawk Aggregates, Inc., (hereinafter referred to as 'BAI'), which was in the business of mining sand, gravel, and similar construction materials. Since 1947 BAI had mined sand and gravel on a 120 acre tract located about two miles west of the Village of Milan, Rock Island County, Illinois, adjacent to Highway 92. A subdivision for future homes was planned for the same site. In May, 1955, at the request of BAI, the defendant corporation, which had supplied the electrical power needs of BAI since 1947, installed a power line to supply electricity to a nearby farm house and also to supply the future electrical needs of the contemplated subdivision. This power line was a tap line running south from the main power line which extended along Route 92, the tap line following a county side road which also intersected Route 92. This tap line extended between the side road and the land of BAI over the county road right-of-way. The corner or intersection formed by the roads and the power lines was the site of the accident involved in this suit. At the time the tap line was installed, BAI was mining sand and gravel 300 to 400 feet east of the lines. The engineer, who supervised and aided in the installation of the tap line, saw and knew of the nearby mining operations and saw and knew that a crane was used some 300 to 400 feet to the east of the lines. The tap wire consisted of a bare, uninsulated, stranded copper wire with porcelain insulators spotted on a pin, carrying 13,200 volts. No warning signs of high voltage were posted. The wire involved was strung 32 to 34 feet above the ground.

On September 29, 1955, the date of the accident, BAI employed about 8 or 9 men who, in the course of their work, used cranes and other pieces of heavy equipment including the crane involved in the accident. The day before the accident the plaintiff had been directed to move several large pieces of equipment from other parts of his employer's land and deposit them in this corner area to the south of Highway 92 and to the east of the county road. The equipment, which was to be stored in the corner preparatory to sale, was loaded on trucks and moved to the corner location, then lifted off the trucks with a crane and dropped to the ground where it was to remain until sold. On the morning of September 29, 1955, the plaintiff came to work about 7:00 a. m. He and the crew, which was under his supervision, were on the location in the corner area adjacent to the roadways and the power lines. It was raining. The truck carrying the equipment to be unloaded was 'spotted' as was the crane. The crane was a movable type that rotated on a center axis and could be turned from side to side. The crane's main boom, which measured 40 to 45 feet in length, could be raised and lowered, and there was attached to it a cable connected to a winch which could be wound and unwound, thereby raising and lowering the bucket or other device attached to the end of the cable. The crane, weighing approximately 25 tons, was to be used to pick up the equipment from the truck, turn on its axis and set the equipment down on the ground in the corner area. After the crane was spotted in position, the crane operator swung the crane around to check the clearance with the wire to the west of the corner, at which time there was about 8 feet of clearance. According to the testimony of the plaintiff and one Billy Johnson, the crew member who witnessed the accident, a bucket weighing about 1,500 pounds, was picked up and swung above and to the north of the truck with the plaintiff helping to guide the heavy bucket by means of a chain attached to it. As the bucket was being lowered to the ground and while there was 3 to 4 feet clearance between the boom and cable and the power line, the electricity then arced from the power line to the cable down through the chain into the body of the plaintiff who was standing on the ground, shocking and injuring the plaintiff severely. Both the plaintiff and the witness, Billy Johnson, testified that the boom and cable were 3 to 4 feet from the wire. The plaintiff, who was 38 years old at the time of the occurrence, knew the location and general condition of the bare, stranded copper wire and conceded he knew it to be dangerous. There was conflicting and contradictory testimony by the crane operator on the manner in which the accident happened, as well as a contradictory written statement allegedly secured by the defendant from the witness Johnson. The testimony adduced by the defendant consisted principally of certain expert testimony that the crane or some part thereof must have contacted the wire or approached it within a fraction of an inch in order to have produced an electrical shock which would extend through the chain into the body of the plaintiff.

The Complaint of the plaintiff charged the defendant with being negligent in: a) failing to give warning by suitable signs or otherwise of high voltage, b) failing to use high poles to carry electrical wires above the known working area used by nearby workmen, c) failing to insulate its wires around areas where workmen were known to be working, and d) overloading the wires with a greater amount of electric current than they were designed to carry.

The trial court was of the...