Witzig v. Illinois Power Co.

Decision Date16 October 1969
Docket NumberGen. No. 11062
PartiesEdward WITZIG, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, a Corporation, Defendant-Third Party Plaintiff-Appellee, v. KLOPFENSTEIN GRAIN COMPANY, Third Party Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Costigan & Wollrab, Bloomington, for plaintiff-appellant; Guy Fraker, Bloomington, of counsel.

Livingston, Barger, Brandt, Slater & Schroeder, Ralph E. Schroeder, Bloomington, Heyl, Royster, Voelker & Allen, Lyle W. Allen, Richard M. Baner and Duncan B. Cooper, III, Peoria, for appellees.

SMITH, Justice.

The single issue in this case is whether or not the plaintiff's own discovery deposition contains admissions which convict him of contributory negligence so that the trial court was justified in granting the defendant's motion for summary judgment. The trial court held that it did and there being no triable issue of fact on this point, entered a judgment in favor of the defendant in bar of plaintiff's suit. Plaintiff appeals.

This court has had occasion recently to consider the rules applicable to summary judgment, Brooks v. Dean Berenz Asphalt Co., Inc., 83 Ill.App.2d 258, 227 N.E.2d 100, and also while sitting in the first district, Watkins v. Lewis, 96 Ill.App.2d 182, 237 N.E.2d 830. In each of these cases, we carefully enunciated the rules applicable and their repetition in this opinion would appear to be pure redundancy. In the Berenz case, we held that summary judgment was proper; in the Watkins case we held that summary judgment was improper. We applied and used in same rules in reaching diametrically opposite results for the very simple and cogent reason that the facts in the cases were different. Plaintiff cites Cannon v. Thompson, 33 Ill.App.2d 233, 179 N.E.2d 37, as well as our own Watkins case, to indicate that the courts are disenchanted with summary judgments and that the case at bar is typical of why that is so. While we do not read those cases to so indicate and certainly not to so hold, the blunt fact remains that a motion for summary judgment should be allowed on motion of either party where there is no genuine issue of any material fact to litigate. As stated in Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576, 580, the policy is succinctly stated thus:

'Summary judgment procedure is an important tool in the administration of justice. Its use in a proper case, wherein is presented no genuine issue as to any material fact, is to be encouraged. The benefits of summary judgment in a proper case inure not only to the litigants, in the saving of time and expenses, but to the community in avoiding congestion of trial calendars and the expenses of unnecessary trials.'

Plaintiff suggests that contributory negligence is a question ordinarily to be decided by a jury. This may be conceded. He asserts that to decide that issue on a motion for summary judgment denies him his day in court. That, too, may be conceded. Actually a motion for summary judgment only decides that there is no reason for the plaintiff or anybody else to waste a day in court when there is no genuine issue or material fact to be decided. All we have before us and all the trial court had before it was whether or not on this record there is a genuine issue of a material fact to be tried. The trial court thought not--we agree.

In Watkins, we indicated that the defendant's counter-affidavit on the plaintiff's motion for summary judgment raised a single defense--sudden mechanical failure; that this defense introduced material questions as to proximate cause and the application of the doctrine of emergency and that there were inferences from this defense which presented questions of material fact for determination by a jury. In Brooks, we made a contrary determination that there were no facts or inferences in the record before us which would allow the plaintiff to submit the decisive issue of the defendant's negligence to a jury. The trial court held from the plaintiff's deposition that a like situation exists here. We agree. It was recently stated in Texaco, Inc. v. Kane County Oil, Inc., 96 Ill.App.2d 383, 390, 238 N.E.2d 622, 626:

'We agree that the purpose of a summary judgment is not to try issues of fact, but only to determine whether material issues of fact exist. An examination of the entire record in this case does not show any material issues of fact, but rather, arguments and legal questions as to the effect of the material facts. We believe that the trial court was correct in holding that no genuine issue of fact remained, and that the cause of action was determinable as a question of law.'

The testimony of the plaintiff in this case creates the same precise situation and the trial court correctly so held.

We turn now to the plaintiff's deposition in the light of Supreme Court Rule 212, which provides that discovery depositions may be used only '(2) as an admission made by a party * * * in the same manner and to the same extent as any other admission made by that person; * * *' Ill.Rev.Stat.1967, ch. 110A, § 212.

Plaintiff cites 69 A.L.R.2d, p. 51, for the proposition that in actions against the power company for injuries due to contact with electrical wires through an object held by the plaintiff, the question of contributory negligence is generally a jury question, particularly where it appears that he did not have knowledge of the specific danger which caused the injury. In the case at bar, the plaintiff testified that he had no knowledge of the voltage carried nor whether or not the wires were insulated or uninsulated. From this plaintiff argues that Stilfield v. Iowa-Illinois Gas...

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11 cases
  • Genaust v. Illinois Power Co.
    • United States
    • United States Appellate Court of Illinois
    • 6 Noviembre 1974
    ...of placing them in proximity to uninsulated electrical power lines. We do not so interpret that holding. See Witzig v. Illinois Power Company, 114 Ill.App.2d 139, 251 N.E.2d 902. Even assuming that Stilfield is to be interpreted as plaintiff suggests, it would not be applicable to plaintiff......
  • Stambaugh v. Central Illinois Light Co.
    • United States
    • United States Appellate Court of Illinois
    • 14 Octubre 1976
    ... ... After plaintiff had climbed part way up to the tower, the upper portion of the antenna came in close proximity to an uninsulated electric power line carrying 13,000 volts which ran across the rear of Hetzel's lot. The current arced from the power line to the antenna and knocked plaintiff to ... Compare Stilfield v. Iowa-Illinois Gas & Electric Co. (2d Dist. 1960), 25 Ill.App.2d 478, 167 N.E.2d 295, with Witzig v. Illinois Power Co. (4th Dist. 1969), 114 Ill.App.2d 139, 251 N.E.2d 902 ...         The dissenting opinion filed herewith suggests 'the ... ...
  • Fishel v. Givens
    • United States
    • United States Appellate Court of Illinois
    • 14 Abril 1977
    ... ... K. T. GIVENS, Defendant-Appellee ... No. 13568 ... Appellate Court of Illinois, Fourth District ... April 14, 1977 ...         [47 Ill.App.3d 513] ... [5 Ill.Dec ... (Witzig v. Illinois Power Co. (4th Dist. 1969), 114 Ill.App.2d 139, 251 N.E.2d 902; Tuohey v. Yellow Cab ... ...
  • Peltz v. Chicago Transit Authority
    • United States
    • United States Appellate Court of Illinois
    • 2 Septiembre 1975
    ... ... No. 61133 ... Appellate Court of Illinois, First District, First Division ... Sept. 2, 1975 ...         [31 Ill.App.3d 949] Raymond ... (Giampa v. Sunbeam Corp. (1966), 68 Ill.App.2d 425, 216 N.E.2d 233; Illinois Power Co. v. City of Jacksonville (1960), 18 Ill.2d 618, 165 N.E.2d 300.) The right of the moving party ... (Mitchell v. Ralston (1971), 130 Ill.App.2d 759, 266 N.E.2d 424; Witzig v. Illinois Power Co. (1969), 114 Ill.App.2d 139, 251 N.E.2d 902.) The plaintiff, as shown by the ... ...
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