Cooper v. Kankakee Electric Light Co.

164 Ill. App. 581, 1911 Ill. App. LEXIS 361
CourtAppellate Court of Illinois
DecidedOctober 13, 1911
DocketGen. No. 5495
StatusPublished
Cited by5 cases

This text of 164 Ill. App. 581 (Cooper v. Kankakee Electric Light Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Kankakee Electric Light Co., 164 Ill. App. 581, 1911 Ill. App. LEXIS 361 (Ill. Ct. App. 1911).

Opinion

Mr. Presiding Justice George W. Thompson

delivered the opinion of the court.

It is contended ,it was not established by a preponderance of the evidence that the origin of the fire by which appellee’s residence was destroyed was caused by electricity escaping from the electric light wires of the electric light company over the wires of the telephone company connected with appellee’s residence. It is conceded by appellants that they had joint poles, upon which their wires were supported in the alley in the rear of the appellee’s residence, and that some of the wires of the electric light company carried a current as high as three thousand volts; that the wires of the telephone company supported by the poles and cross arms were uncovered and uninsulated except where attached to the cross arms and the residence of appellee, and that the telephone wires were above the electric light wires. The evidence shows that the fire occurred in the early morning before daylight, and that after the fire a wire of the telephone company was found broken, with one end of the broken wire hanging across an electric light wire in the alley from four to seven hundred feet from appellee’s residence; that there were two wires of the telephone company connected with the appellee’s residence on the south side of the house near the southeast corner below the eaves, and that they ran down the side of the house about a foot apart to the base board, then west on the base board three or four feet to a basement window, then into the basement; and that there were ho other wires up and down on the south side of the house, and there was no lightning arrester connected with the telephone wires at appellee’s house.

There is evidence showing that shortly before the fire the electric current was escaping in the alley from the electric light wires, near where the telephone wire was broken, and that one end of the broken telephone wire was looped over other wires so that it could swing-back and forth and that there was a high wind that night; and that there was no fuse in the telephone wire between where the broken wire was looped over other wires and the appellee’s residence. The evidence also shows that about midnight there was some trouble with appellee’s telephone; that it was making a buzzing-noise so that it awoke appellee’s husband in an upper room, and that when he tried to answer over the telephone it was “dead”; that the wires of the electric light company were insulated by a covering, but three of them had been in use four or five years and subject to deterioration by the weather. The evidence of N. W. Grinnell, the witness who first discovered the fire, is that he was sleeping in a room in a house six feet from the Cooper residence on the side next to it, and that he was awakened by the light from the fire; that the fire was at the southeast corner of the Cooper home; that he “looked right down on the fire right over it,” “it was from the sill up and was very near to the roof but not quite and was about two feet wide;” “it was right along- the wires; the insulation on the wires was on fire and the siding was on fire;” the fire was not inside the house, “it was just on the outside.” Two other witnesses, George Sanford and George Cooper, testified substantially the same as to the location of the fire when it was discovered. George Cooper who is the husband of appellee also testified that he went through the house at that time and there was no fire inside the house. It was not necessary for the appellee to show the exact manner or point at which the electric current escaped from the electric light company wires to the wires of the telephone company or the precise place where the fire started. It is sufficient on that subject if the circumstances show that electricity did escape from the wires of the electric light company to the wires of the telephone company and that the fire was started by electricity conveyed to the house over the wires of the telephone company. That a very powerful current did so escape from the wires of the electric light company to the wires of the telephone company that night is proven by other facts in evidence. While appellants undertook to prove theoretically by experts that the fire could not have been started as alleged, yet theories must give way when uncontroverted facts show that the theories are at variance with the facts. The jury were justified in finding from the evidence that the fire was started by the electric current as charged and that there was joint negligence proved against both appellants, either in having light, easily broken wires, which often did break, suspended above the wires of the electric light company carrying such a high potential current, or because there were not proper guards to prevent the upper wires when broken from coming in contact with the lower wires, or in not having an automatic circuit breaker which would have cut off the electric light current the moment a wire was grounded, or for any of the other matters constituting negligence alleged in the declaration which the evidence tended to prove, and which it is unnecessary to review in detail.

Appellants insist “that the plaintiff should not have been permitted to testify as to the rental value of her property, as the true measure of damages in a suit for injuries for a building is the cost of repairing and restoring the building to the condition it was in before the damage,” and rely upon FitzSimons v Braun, 199 Ill. 390 (94 Ill. App. 533) as authority for their contention. In that case the measure of damages is said to be the cost of restoring the house to its previous condition. The loss of the use of the building while being repaired was not claimed or referred to. The question of a recovery' for loss of rental was not involved; the injury there sued for did not prevent the use of the building while it was being repaired. It cites section 1018 of Sutherland on Damages as authority for the recovery of the cost of repairs. In this case the house was only partially destroyed, and was not and could not be used, while it was being repaired. For the injury to property, such as a house that may readily be repaired or reproduced, the measure of recovery has been held to be the cost of repairing it together with the value of its use while that was being done. 3 Sutherland on Damages, sec. 1018; 3 Sedgwick on Damages, sec. 944; 28 Am. and Eng. Encyc. of Law 607; Marks v. Culmer, 6 Utah 419; Baker v. Drake, 53 N. Y. 211.

It is also suggested, that after appellee had shown the rental valne of the premises, appellants should have been permitted to show that the repairing of the building was delayed for the purpose of effecting a settlement with an insurance company. The appellee after testifying that the rental value was $30 a month and that the house stood four or five weeks before anything could be done to it on account of the weather, was asked on cross-examination if a part of that time was not consumed in waiting for a settlement with the insurance company. The witness answered: “No, sir.” Appellee then objected to the question as immaterial; the court sustained the objection. Appellee did not move to exclude the answer, and the answer stood as evidence so that appellant had the benefit of the question and answer. While the question was proper and the objection should have been overruled, appellants were not harmed by the ruling.

Appellants insist there was error in giving the first and sixth instructions requested by appellee. The first instruction is:

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Bluebook (online)
164 Ill. App. 581, 1911 Ill. App. LEXIS 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-kankakee-electric-light-co-illappct-1911.