Commonwealth Electric Co. v. Rose

73 N.E. 780, 214 Ill. 545, 1905 Ill. LEXIS 2545

• Court: Illinois Supreme Court
• Decided: February 21, 1905
• Status: Published

Opinion

Mr. Justice MagrudER

delivered the opinion of the court:

The facts of this case are settled by the judgment of the Superior Court of Cook county, and the judgment of the Branch Appellate Court for the First District affirming the same, in favor of the appellee. At the close of the appellee’s evidence, and again at the close of all the evidence, the appellant asked the court to give to the jury a written instruction, requiring them to find the defendant not guilty. The instruction thus asked was refused, and the only question for us to consider, so far as the evidence is concerned, is whether or not the proof tends to sustain the cause of action.

First—The evidence tends very strongly to show that the appellant company was guilty of negligence, as charged in the declaration. The ordinance, referred to in the statement preceding this opinion, and the material part of which is set out in hcec verba in the declaration,' required the appellant company to properly insulate all the conductors and wires, owned and operated by it under the provisions of the ordinance, and also required appellant to protect all overhead conductors used by it, by guard-wires, or other suitable mechanical device or devices. The proof is practically without contradiction that there were no guard-wires to protect the electric wires, used by the appellant at the intersection of Parnell avenue and Sixty-seventh street, where such wires passed under the wires of the telephone company, running east and west. Guard-wires are defined in the evidence as being wires running parallel with the electric wires and above them, “so as to keep anything from above dropping upon themand there are usually three of the guard-wires, one on each side of the electric wires, and one above them. The guard-wires have no electricity in them. One of the witnesses testified: “There were no guard-wires at the street intersection.” The following is the testimony of another witness: “Q. Were there any guards there?—A. No, sir; no guards.” The proof also tends to show that the electric light wires were not protected by any other suitable mechanical device. As the plats and diagrams in evidence, and the statements of the witnesses, show that there was nothing at all over the electric light wires there could have been no other device over the electric light wires, as a protection. The testimony tends to show that, if there had been such guard-wires over the electric light wires to protect them, no electric shock would have been produced, when one of the telephone company’s wires, stretched above the electric light wires, fell upon the latter, and came in contact with them.

The evidence also tends to show that, at the time the accident occurred, the electric light wires were not properly insulated, as required by the ordinance. The absence of proper insulation is sustained by the testimony of both sides. The insulation was a sort of rubber covering, and is described by the witnesses as having been in a rough, frayed condition, so that little strips were hanging from it. It is also stated by some of the witnesses to have been worn off in a great many places at that point. It was in a ragged condition. One of appellant’s witnesses states that the insulation in some places was very bad, and gave, as a reason why he regarded it as bad, that he saw “strings hanging down.” The insulation is stated to have been made of some kind of non-conducting fiber, soaked in a moisture-proof compound, and also non-conducting material, which adhered closely to the wire. As one of the purposes of insulation was to keep out water, it was in a defective condition as soon as it began to loosen. The testimony tends to show that, if the electric light wires of the appellant had been properly insulated, the electric shock, which, either alone or in connection with other causes, caused the death of Rose, would not have occurred when the telephone wire over the electric light wires fell or swayed, so as to come in contact with the latter.

While the appellant does not,seriously oppose the contention, that there was an absence of such guard-wires and insulation, as were required by the ordinance, yet it claims that the injury was not caused thereby. The evidence tends to show that the swaying or falling of the telephone wire, so as to come in contact with the electric wires beneath it, was an almost necessary result of the character of the work, which the deceased and his fellow-worlcmen were doing. The proof is quite clear that the deceased did receive an electric shock, produced by the contact between the two classes of wires. The witness, Clark, swears that he received a shock, and let go the wire, and that he and the deceased both, had hold of the same wire, so that the same shock, «which caused Clark to “jump,” passed into the body of the deceased. Clark says: “Everything was all right and then I told him I was ready, and the next thing I knew I received the shock, and I immediately let go and got my hand in the clear. It came from the electric wire between Rose and myself. It was the same thing he got; the same shock. We both had hold of the same wire.- When I got shocked, it caused me to let go and jump to one side, but I did not lose my footing.” The witnesses speak of seeing a flash, and of hearing the deceased utter the exclamation, “Oh!” at the same time when Clark received the shock. Even if it were true that the accident may have been caused partly by the fact, that the deceased slipped from the cable or strand on which he was standing, yet it is also true that the shock in question aided and contributed to his fall from the position where he was at work. It was a fair question for the jury, under the circumstances, to decide whether or not the shock was a concurrent and efficient cause of the fall of deceased. Where an injury is the result of the negligence of the defendant and an inevitable accident, or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury, and the injured or deceased party was in- the exercise of ordinary care for his own safety. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Chicago and Alton Railroad Co. v. Harrington, 192 id. 9),

The case at bar is somewhat similar in its facts to the case of Economy Light and Power Co. v. Sheridan, 200 111. 439, and the principles of law there announced are applicable here. In the Sheridan case, supra, it was said, where the plaintiff’s intestate came in contact with ah electric light wire, and received an electric shock, which threw him from the pole upon which he was working to the ground, and caused his death, that “there was no direct proof that the deceased came in contact with the electric light wire, and that he received an electrical shock which threw him from the pole to the ground, but from the facts and circumstances proven it might fairly and reasonably be inferred that such was the cause of his death. That such was the fact was susceptible of being proven by circumstantial, as well as by direct, testimony.”

We are of the opinion that the evidence tends to show that the appellant company was guilty of negligence in the respects above indicated, and that such negligence was the cause of the injury to the deceased.

Second—The next question, which arises under this branch of the case, is whether or not the deceased was in the exercise of ordinary care for his own safety at the time when the accident occurred. This was a question of fact for the determination of the jury, and was submitted to them, as we think, under proper instructions. It is claimed by the appellant that the deceased was guilty of contributory negligence upon four alleged grounds: First, that he knew of the defective condition of the electric light wires; second, that his position upon the pole was not proper; third, that he should have worn a belt; and, fourth, that he should have worn rubber gloves. The evidence does not show conclusively that the deceased had actual knowledge of the absence of the guard-wires, and of the improper condition of the insulation. The wires were some twenty-eight or thirty feet above the ground, and some of the testimony is to the effect that it was not possible for a person, standing on the ground, to see the exact condition of the wires overhead. The proof shows that there was some conversation among some of the men, while going from a former job, upon which they had been at work, to the corner of Parnell avenue and Sixty-seventh street, in reference to the defective condition of the wires as to insulation, but it is not clear that this conversation was heard by the deceased. On the contrary, the testimony tends to show that the knowledge of the witnesses, testifying as to the defective condition of the electric light wires, was acquired by them after the accident occurred, and not before the occurrence of the same.

■ It is said that the deceased was guilty of contributory negligence, because he stood upon the steel cable or “messenger” attached to the poles, whereas Clark, one of the men who was at work upon the pole west of the one where the deceased was working, placed himself, or a portion of his body, upon one of the cross-arms of the pole. There is evidence, however, tending to show that the circumstances, under which the deceased was at work, were different from those under which Clark was at work, and that the position of the deceased, while standing upon a firm steel cable carrying no current, left him free to use his hands in doing his work, and was a convenient and proper mode of doing the same. There was nothing to show tlrat the deceased had any reason to expect a shock, and it was for the jury to say whether or not the position, which he occupied while doing his work, indicated that he was guilty of negligence.

It is also said that the deceased was guilty of negligence, because he did not have a belt attached to the pole at the time he received the shock. There is evidence, tending to show that the belt is used ordinarily in construction work, or a different kind of work from that in which the deceased was engaged. It also appears from the proof, that the presence of - a belt would have been a hindrance, as the deceased, in cutting and raising the wire upon which he was at work, was obliged to climb through other wires, and the snaps of the belt, there being one on each side thereof, were apt to catch in the wires while the workman was going through them in climbing up and down the pole. Without going into the testimony upon this subject, it is sufficient to say that there was proof, tending to show that the use of the belt by the deceased was not a necessity under the circumstances. It was a question for the jury to decide whether the failure to use such a belt showed negligence on the part of the deceased. Some of the proof tends to show that, if deceased had had a belt, it would have been necessary to unhook it in climbing up and down the pole, and that the braces, which extended outward from the pole just above each cross-arm to the next arm above, would have prevented the slipping of the belt high enough to have enabled the deceased to have stood on the second cross-arm.

What has been said is also applicable to the question, whether or not the deceased was guilty of negligence in not using rubber gloves. There is some proof, tending to show that there were rubber gloves in the wagon, in which the workmen rode, when they came to the point where the deceased and his companions were to do their work. There is, however, proof tending to show that rubber gloves are used entirely in handling what are called “live” wires, that is, wires with a current. The wires, which it was necessary for the deceased to handle in doing the work in which he was engaged, were not charged with any current, as we understand the testimony. In short, there is evidence tending to show that the use of rubber gloves by deceased in the work, which he was doing, would have been an inconvenience.

We are unable to say that there is no evidence, tending to show that the deceased was in the exercise of ordinary care for his own safety. The question, whether or not he was in the exercise of such care with reference to the failure to use the belt, or the gloves, or with reference to the position occupied by him while he was engaged in his work, was submitted to the jury by the instructions, asked by and given for, both parties.

Third—It is claimed by appellant that the court erred in giving to the jury the second instruction, which was given for the appellee, and which is as follows:

“The court instructs the jury that ordinary care, as mentioned in these instructions, is that degree of care which an ordinarily^ prudent person, with deceased’s knowledge or means of knowledge of electrical affairs, and situated as deceased was, before and at the time of the accident, would exercise for his own safety.”

The objection made to this instruction is, that it included the italicized words as above indicated. We concur in the following views expressed by the Appellate Court in their opinion, deciding this case, in reference to the instruction above quoted, to-wit: “The instruction obviously refers to the question of whether the deceased exercised ordinary care for his own safety. In our opinion the defendant was not prejudiced by the words complained of. The deceased was an experienced lineman and had been a foreman. Acts or conduct on his part might amount to or constitute negligence, when the same acts or conduct on the part of one wholly ignorant of electrical affairs would not amount to negligence. It was for the jury to find, from all the evidence, what the deceased did, or failed to *do, and then to say whether such acts and conduct showed ordinary care on his part for his own safety, or amounted to contributory negligence. This included as well the acts and conduct of the deceased in placing himself in the position in which he was, as his acts and conduct in that position, but we cannot see that the instruction is subject to the criticism, that it assumes that the deceased exercised ordinary care in placing himself in the position, in which he was at the time he fell.”

The instruction could have worked no injury to the appellant, because the clause objected to imposed upon the deceased a higher degree of care than an ordinary person would be required to exercise under the same circumstances. The evidence shows that the deceased was, or should have been, versed in electrical affairs, and hence was charged with a knowledge of the dangers surrounding him greater than an ordinary person would be charged with.

In addition to this, the error in inserting the italicized words in the instruction, if there was error, was cured by the instructions which were-given, inasmuch as from a consideration of all the instructions, regarded as one charge, the jury could not have been led into any error as to the degree of ordinary care, which the deceased was required to exer-' cise. Instruction i given for the appellee and instructions 13, 17, 20, 6, 7 and 16 given for the appellant, all required that the deceased should exercise ordinary care for his own safety. Instruction 6, given for the appellant, told the jury that, if they believed from the evidence that it was dangerous for Rose to stand upon the strand or “messenger” cable, which made a perfect circuit between any charged electrical agency in the hand of Rose and the ground, and that Rose knew, or by the exercise of ordinary care, would have known, that standing upon said “messenger” cable was dangerous, and that a man of ordinary prudence, under such circumstances as surrounded Rose, would not have stood upon the said “messenger” strand or cable, while holding a telephone wire suspended over electric light wires, then the jury should find the defendant not guilty. Instruction 7, given for appellant, told the jury that, if they believed from the evidence that a man of ordinary prudence, exercising ordinary care for his own safety under such circumstances as surrounded Rose at the time of this accident, would have worn and used a safety belt, and that Rose did not at the time of this accident wear a safety belt, and that Rose’s death would have been prevented if he had worn a safety belt, then the jury must find the defendant not guilty. Instruction 16 given for the appellant told the jury that, if they believed from the evidence that Rose, before he went upon the cable east of Parnell avenue, had been warned that the wires were dangerous, and knew that said wires were dangerous, and that he, at the time he was upon the telephone pole, did not wear a safety belt to prevent himself from falling, and did not wear rubber gloves on his hands to prevent receiving a shock, and stood upon the “messenger” cable beneath the telephone wires without supporting himself with his hands, body or arms, and that a man of ordinary prudence under like circumstances would, if he had been warned of the dangerous character of the electric light wires, have had in use a safety belt, and would have worn rubber gloves, and would not have stood upon said “messenger” cable to, perform the work deceased undertook to perform, without having some other support than deceased had, then Rose was guilty of contributory negligence and his administratrix could not recover a verdict in this case, provided such acts or .omissions contributed to bringing about the accident. ■

Fourth—The action of the trial court in refusing to give certain instructions asked by the appellant is also criticised as being erroneous. Some of the refused instructions stated in substance that no recovery could be had under the 'ordinance heretofore referred to, or under the count based upon it. The declaration specifically set out in hose verba the material portion of the ordinance, and also that the defendant accepted the terms and conditions of the ordinance. The ordinance was introduced in evidence, and a written acceptance thereof, filed with the city, was also introduced in evidence; and it was also shown that the electric wires in question were operated under the ordinance.

The main objection, made by the appellant upon this branch of the case, is that the ordinance makes an act negligence, which, without the ordinance, would not be negligence. In other words, the claim is that the ordinance could not create a duty, and make the violation of that duty evidence of negligence. Where the ordinance is such an one as the city is authorized by its charter or by statute to pass, the violation of the ordinance is prima facie evidence of negligence. Under its charter the city of Chicago had the right to regulate the use of the streets, and to provide for the lighting of the same, (i Starr & Curt. Ann. Stat.—2d ed.— p. 694). In addition to this, "the regulation and control of electric light companies in respect to their use of the streets, and the erection and construction of their appliances, is within the police power generally delegated by the State to municipal corporations.” (10 Am. & Eng. Ency. of Law, —2d ed.—p. 863). “The specific duty, a violation of which is negligence in law, may also be created by statute or ordinance.” (21 Am. & Eng. Ency. of Law,—2d ed.—p. 460). The ordinance here in question, having been passed in pursuance of a power conferred by statute, has the force and power of the statute. ( United States Brewing Co. v. Stoltenberg, 211 111. 531, and authorities there referred to). Nor can it be said that the ordinance in question is indefinite and uncertain by reason of the use of the words, “or other suitable mechanical device or devices.” Nor is there any delegation of power by the ordinance to a city representative to determine what are suitable mechanical devices. A statute, relating to fire escapes, which provided, among other things, that certain buildings “shall also be provided with one or more automatic metallic fire escapes, or other, proper device” and imposed upon the inspector of factories certain duties with reference to enforcing the same, has been sustained by this court. (Arms v. Ayer, 192 Ill. 601). See, also, to the same effect McRickard v. Flint, 114 N. Y. 222, and Willy v. Mulledy, 78 id. 310. The views, expressed in the Ayer and Flint cases, supra, apply here. Moreover, the proof shows that appellant accepted the ordinance without qualification, and availed itself of the benefits of the same, and, therefore, is now estopped from repudiating its conditions. (Chicago General Railway Co. v. City of Chicago, 176 111. 253; 21 Am. & Eng. Ency. of Law,—2d ed.— p. 979). We are of the opinion that the trial court committed no error in refusing the instructions upon this subject, or in refusing to exclude the ordinance.

The refusal of some other instructions is complained of, but they were erroneous as seeking to confine the attention of the jury to the absence of proper insulation alone without reference to the additional requirement of the ordinance as to the protection of the electric light wires by guard-wires, and as excluding from their consideration the receiving of the electric shock as a concurring cause of the deceased’s fall.

Fifth—Complaint is also made on behalf of the appellant that counsel for appellee made improper remarks in his address to the jury. We discover nothing in the remarks so made, which transgressed the limits of legitimate argument. The remarks, alleged to have been improper, related to the acceptance of the ordinance by the appellant company, and the failure of that company to obey it after its acceptance. The inferences and argument in reference to the acceptance were, as we think, justified by the facts, and such facts were substantially undisputed. Other remarks, alleged to have been improper, were comments made by counsel upon the testimony and conduct of one of the appellant’s witnesses. Counsel may arraign the conduct of the parties, and impugn, excuse, justify, or condemn motives, so far as they are developed in evidence, or assail the credibility of witnesses when it is impeached by direct evidence, or by inconsistency, or incoherency of their testimony, their manner of testifying, their appearance upon the stand, or by circumstances. “He may argue such conclusions from the testimony as he pleases, provided he does not misquote witnesses.” (2 Ency. of PL & Pr. p. 716). It has been said: “Just and fierce invective, when based upon the facts in evidence and all legitimate inferences therefrom, is not discountenanced by the courts.” (2 id. p. 747).

For the reasons above stated, the judgment of the Appellate Court is affirmed.

Judgment affirmed.