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Mckinney v. Illinois Power Co.

MAY 18, 1960.

CHARLES E. MCKINNEY, PLAINTIFF-APPELLANT,

v.

ILLINOIS POWER COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Macon county; the Hon. RODNEY A. SCOTT, Judge, presiding. Affirmed. CARROLL, JUSTICE.

This is an action for personal injuries sustained by plaintiff when a metal grain conveyor which he and other workmen were operating came in contact with a high voltage electric transmission line owned and maintained by defendant.

At the time of his injury, plaintiff was employed by the Farmers Grain Company, Palmer, Illinois. He was working on a grain storage bin site maintained by the Commodity Credit Corporation and which was located in a field on the west side of paved Route 48.

The facts as to the physical situation existing at the bin site when the accident occurred are not seriously disputed and from the testimony, photographs and plats in evidence it appears that there were two rows of bins adjacent to and parallel with Route 48; that the two rows were approximately 40 feet apart; that between the 21st and 22nd bin there was a much larger open space; that the bins varied in height from 22 to 28 feet and were filled through an opening at the top; that a metal conveyor was used to elevate the grain to this opening; that the conveyor was of the auger type with a boom approximately 45 feet long; that it was mounted on wheels and when in use was moved manually on the bin site; that defendant maintained an electric transmission line on its right of way inside the fence separating the highway from the bin site which ran parallel to said highway northerly from the bin site entrance which was at its southern end; that defendant's wires extended over the bin site entrance; that the line consisted of two wires; that the bottom wire was 18 feet 8 inches from the ground and 5 feet 2 inches from the 21st bin; that the top wire was 2 feet 11 inches higher than the bottom wire and 7 feet 4 inches diagonally from the 21st bin; that on the highway right of way opposite the open space, north of the 21st bin, there were 3 trees, the branches of which overhung defendant's easement line and where this occurred defendant's wires went through these branches; that there were no tree branches at the point where the conveyor contacted defendant's wire; that when the accident occurred the weather was clear and bright; that the defendant's line was constructed and put into use in November of 1945 and was being used when the bins were erected in 1949.

The complaint alleged plaintiff to be in the exercise of due care and charged the defendant with negligence in allowing its wires to remain dangerously close to the 21st bin; in allowing its wires to be obscured from view, in failing to insulate its wires and to give warning of their presence to persons in or about the bin site. The jury returned a verdict for defendant. The court denied plaintiff's post-trial motion and entered judgment for defendant and plaintiff has appealed.

The first point presented by defendant's brief is that plaintiff has failed to properly abstract the record and therefore there is no issue before this court. The deficiencies cited are failure of the abstract to show the judgment appealed from and the date of service and filing of the notice of appeal and praecipe. Subsequent to the filing of defendant's brief, plaintiff filed a motion in this court asking leave to file a supplemental abstract of record to supply the above alleged deficiencies. Objections were filed to such motion and it has been taken with the case. The original abstract (page 93) shows the following:

"Verdict ordered recorded. Judgment entered thereon."

The abstract shows filing of the notice of appeal with proof of service, and filing of the praecipe for the record but fails to give the date of such filings. Plaintiff, by filing an additional abstract of record, seeks to show the expanded judgment order and to supply the omitted filing dates of the notice of appeal and praecipe for record. Defendant's objection to plaintiff's motion is that the granting thereof would be prejudicial to defendant in that it would permit the injection of new matter into the case and raise grounds which defendant could not now argue since the time for filing its brief and argument has expired. We do not think such an argument applies to the instant situation. The original abstract of record notes the entry of a final judgment and appropriately refers to the page of the record where the same can be found. It is true that the date of the filing of the notice of appeal and praecipe should have been included in the abstract of record, but since it is not contended that such filing was not within the time fixed therefor we do not regard such deficiencies as being sufficient to raise any serious question as to the jurisdiction of this court to entertain plaintiff's appeal. Accordingly, plaintiff's motion for leave to file an additional abstract of record will be allowed.

The grounds upon which plaintiff relies for reversal are that the trial court erred in refusing to give plaintiff's Instruction 7, in giving defendant's Instruction 12 and in excluding certain evidence offered by plaintiff. It is not contended that the verdict was against the manifest weight of the evidence.

Plaintiff's Instruction 7 reads as follows:

"A fact may be proved either by circumstantial evidence or direct evidence, or both. Circumstantial evidence is such evidence as tends to prove a fact indirectly and gives rise to a reasonable inference in the minds of the jury of the existence of the fact sought to be proved. Direct evidence is such evidence as tends to prove a fact directly."

Proof of due care was an essential element of plaintiff's case. As indicated by its remarks during the conference on instructions and in passing on the post-trial motion, the trial court refused the above instruction because in his judgment there was no circumstantial evidence in the record to which such an instruction could apply. Determination as to whether such conclusion on the part of the trial court was correct requires an examination of the evidence. The record discloses that plaintiff had lived in and around Palmer, Illinois, most of his life; that for 5 years prior to 1951 when he entered the Marines, he had been employed by Farmers Grain Company and during that period he had on numerous occasions worked on the bin site; that he had frequently driven on Route 48 where it passed the bin site; that he had hauled grain to the site by truck and had many times driven through the entrance over which defendant's wires passed; that he was thoroughly familiar with the grain conveyor and its operation; and that he knew that in taking the conveyor through the entrance it was necessary to lower the same to avoid contact with defendant's wires.

Plaintiff testified that on August 13, 1953, he was working at the bin site; that also present were Glen Best and Thomas Brown, who were truck drivers engaged in hauling wheat from the Farmers Grain Company elevator to the bin site; that immediately before the accident they had finished filling the 21st bin; that Best, Brown and he took hold of the conveyor and were intending to turn it counterclockwise around to a bin in the 2nd row; that the conveyor was at the top of the 21st bin just before the accident and was at a 45 degree angle with the highway; that they raised and started to move the auger and started moving it; that he had no recollection as to where he had hold of the conveyor; that the last thing he remembered was moving the auger; that it did not extend into any trees at that time; that he did not recall seeing the end of the conveyor or seeing any trees there and that the next thing he remembered was coming to in the hospital.

Plaintiff further testified that the first time he recalled seeing defendant's utility poles was when they were pointed out to him after the accident; that during all the time he worked on the bin site prior to the accident he did not ever recall seeing defendant's wires.

Thomas Brown testified that he came on the site about 5 minutes before the occurrence; that plaintiff and Glen Best were there and preparing to move the auger; that the auger was sitting on the 21st bin which they had finished filling; that he, plaintiff and Best raised the conveyor and started to move it; that he didn't know what happened then; that the last he remembered they were moving the conveyor counterclockwise from the 21st bin around to the 2nd row; that on the day of the accident and for a few days prior thereto, he was hauling wheat to the site and averaged about 10 loads per day; ...


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