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Barber v. Finch

APRIL 27, 1962.

LUCILLE BARBER, ADMINISTRATRIX OF THE ESTATE OF FRANK G. BARBER, DECEASED, PLAINTIFF-APPELLANT,

v.

NYLE E. FINCH AND LYLE E. FINCH, D/B/A N.E. FINCH TRUCKING, INC., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Peoria County; the Hon. HOWARD WHITE, Judge, presiding. Reversed and remanded.

SPIVEY, P.J.

Rehearing denied June 18, 1962.

The plaintiff administrator brought this action in the Circuit Court of Peoria County for damages for the alleged wrongful death of Frank G. Barber. A verdict in favor of the defendants was returned by the jury, plaintiff's post trial motion was denied by the Court, and the Court entered a final judgment in favor of the defendants. Plaintiff appeals from this judgment.

On May 20, 1957, plaintiff's intestate, Frank G. Barber, was employed by the Peoria Water Works Co., as a laborer. The company was installing a water main in Limestone Township in Peoria County along what is known as Middle Road. The decedent was helping to place heavy lengths of cast iron pipe along the north side of Middle Road in preparation for the excavation and actual laying of the main. According to the evidence, the pipe was twelve inches in diameter and eighteen feet in length and weighed well over 1000 pounds by the most conservative testimony.

Pipe was hauled from a railroad siding on a semitrailer. From the trailer the pipe was lifted by means of a mobile crane. The operator of the crane, with the assistance of the decedent and another laborer, lowered the pipe into position for use in the water main. The decedent was pushing and guiding a length of pipe at the time of his injury.

Along and parallel with the north side of the Middle Road and twenty to thirty feet above the road were electric power lines carrying 2400 volts. While placing a length of pipe, the cable on the crane either touched or came so close to the power lines as to cause the current to be conducted through the cable and the pipe and electrocute plaintiff's intestate.

Plaintiff brought this action against Nyle E. Finch and Lyle E. Finch, d/b/a N.E. Finch Trucking, who were the owners of the crane. She also sued Forrest Sanders, the operator of the crane, but the operator was dismissed before trial of the cause was commenced.

If we may categorize or generalize, plaintiff's complaint was in the usual style. However, in defendants' answer, they pleaded an affirmative defense alleging that Forrest Sanders, the operator of the crane was a loaned employee of the Peoria Water Works Company, and contended, therefore, that no cause of action accrued to the plaintiff. Plaintiff filed a reply and denied the allegations of the affirmative defense.

From the view that we take of this case, it will not be necessary to review the evidence relating to the "loaned employee" defense. We need not state more than that there was evidence which would have raised a question of fact to be determined by the jury on the issue of the defense. Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 171 N.E.2d 60.

As grounds for plaintiff's request for a new trial, plaintiff contends that the court erred in instructing the jury and that the verdict is contrary to the manifest weight of the evidence.

In order to pass upon the claimed errors in the instructions, it will be necessary to consider other instructions than those said to be erroneous.

Defendants' instruction number ten, which was given without objection provided as follows:

"The Court instructs the jury that one of the issues in this case is whether or not at the time of the occurrence in question FORREST SANDERS was acting as the employee of PEORIA WATER WORKS CO., a corporation, or the employee of NYLE E. FINCH and LYLE E. FINCH, d/b/a N.E. FINCH TRUCKING.

"The Court instructs the jury that an employee may become what is known in law as a `loaned employee.' The test in determining whether or not the workman in the performance of the special work for which he is loaned becomes the employee of the person to whom he is loaned, is whether or not he becomes for the time being wholly subject to the control and direction of the person to whom he is loaned for the special ...


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