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Herington v. Illinois Power Co.

FEBRUARY 16, 1967.




Appeal from the Circuit Court of McLean County; the Hon. LELAND SIMKINS, Judge, presiding. Affirmed.


This appeal arises from denial of plaintiff's post-trial motion which sought a new trial. The jury below found for defendant, Illinois Power Company, in this wrongful death action. Plaintiff contends that certain errors occurred during the course of the trial which were prejudicial and require that a new trial be had. These alleged errors are: (a) Striking certain allegations of negligence from her complaint at the close of her case-in-chief; (b) failing to allow certain amendments to the complaint which she tendered at the close of all the evidence; (c) refusing proper jury instructions; (d) denying an offer of proof made on her behalf; and (e) allowing the defendant to present conjectural testimony for the jury's consideration over objection. The plaintiff also contends that the verdict is against the manifest weight of the evidence.

A consideration of these questions requires a review of the pertinent evidence. Plaintiff's decedent, Thead Herington, hereinafter referred to as "Herington," was employed by Eichelkraut Construction Company in November of 1962 as a steelworker on a construction site at the west campus complex of Illinois State University at Normal, Illinois. Eichelkraut was the general contractor in charge of erecting the Practical Arts Building for the university. On November 19, 1962, the day that Herington was killed, the building was about two-thirds completed. On that day, Eichelkraut's superintendent, Thacker, hired a crane from LaRue Construction Company to lift bundles of roof steel from the place where they had been stored since the preceding summer, to the top of the new building. This crane had a boom approximately one hundred feet in length. The steel bundles were located in a line running generally north and south under power lines owned by the defendant, Illinois Power Company, which extended north and south on poles at the west edge of the construction site. These power lines had been in place before April, 1962, when construction began on the building in question, and they served another building under construction being built by a different contractor, not the construction site in question. There were two 2400-volt lines attached to either end of eight-foot crossarms situated near the top of each pole. A neutral wire was attached to the poles four feet below the charged wires. In the vicinity of the steel, the charged wires were twenty-four feet above ground. The bundles of steel were approximately five feet high.

Five or six bundles had been moved at the time of the occurrence and the last bundle was being attached to the cable of the crane when the incident occurred. On prior loads either Herington or the other steelworker present, Gorman, would direct the crane operator regarding placement of the cable near the bundle to be raised. Then one of them would pass the cable hook and slack cable from the crane under the bundles of steel to the other, and the one receiving it would pull the hook and slack cable on through and attach it in such a manner as to make a loop of the cable. Prior to beginning work that day, Thacker called Herington and Gorman together with the crane operator and Thacker's assistant. Thacker told all the men, including Herington, to be careful of the power lines under which the steel lay; that the voltage was not known and they should not get close to the wires. Gorman and Herington acknowledged this warning. No notice was given to the defendant that the crane would be used or that the steel would be removed. The crane was positioned 25-30 feet west of the Practical Arts Building. The power lines ran in a general north-south line 110 feet west of the building. With the boom extended toward the steel, the end from which the load cable was lowered was about fifty feet above the easternmost charged wire. The operator, in the course of picking up a load, would swing the crane from the building to the steel counterclockwise and lower the cable to either Gorman or Herington. He could not tell the horizontal distance between the load cable and the power lines and therefore depended upon signals from Gorman or Herington, depending upon which one was in the best position to be seen.

On the last load Gorman signaled the crane. He was standing under the electric wires positioned so that he could see the wires, the boom and the cable. He signaled the operator to stop the rotation of the boom and signaled for the load cable to come down. As the cable was lowered it was about two feet east of the easternmost power line. When Gorman got the slack, he knelt on the east side of the bundle. Herington knelt on the west side with his head about four inches above the earth, working toward the hook and underneath the bundle. When Herington took the hook and pulled it toward him, the load cable became charged and killed him instantly.

No one from Illinois Power Company was present on the day or at the time of this occurrence. The electric wires were visible from all parts of the construction site.

Although there was a dispute as to some of the above-stated facts in the evidence, there is competent evidence which supports each of the above recitations. With respect to this evidence, the jury was instructed, at the request of the plaintiff, in the form of IPI 20.01, that the following charges of negligence were made against the defendant:

"1. Failing to properly insulate the temporary power line.

"2. Negligently maintained a high voltage uninsulated power transmission line above the ground when the defendant knew or should have known that large cranes were being employed in close proximity to the power line.

"3. Failed to remove a high voltage uninsulated power line when defendant knew or should have known that cranes were being used in close proximity to the power line.

"4. Failed to transmit the electrical power underground.

"5. Negligently failed to post signs or otherwise give warning of the fact that said power line in fact was not covered with insulating material."

The jury was also instructed, at plaintiff's request, as to the meaning of "proximate cause" in the language of IPI 15.01 and regarding concurring causes in the language of IPI 12.04:

"When I use the expression `proximate cause,' I mean any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting ...

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