APPEAL from the Circuit Court of McLean County; the Hon.
LELAND SIMKINS, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 21, 1971.
This action was to recover damages for wrongful death of Gerald Harvey Ploense occasioned by alleged negligence of defendant, Illinois Power Company, in maintenance of its electrical distribution lines.
A jury returned a verdict for plaintiff for $40,000 and a judgment was entered thereon in the amount of $30,000, the cause of action having accrued prior to the removal of the statutory limit of such actions.
The suit arises out of work being done by plaintiff's decedent, Gerald Harvey Ploense, in connection with a sign which had been erected by his employer, John Warren Anderson, on the Sinorak property at the intersection of Main Street and Route 66 on the south edge of Bloomington, Illinois. This sign advertised the restaurant on the Sinorak property which abutted South Main Street with an entrance and exit road running back to a large parking lot, restaurant and drive-in movie facility. The property had a number of wires of Illinois Power Company along its south boundary and above the sign. On the date of the accident, while working on some changes to be made in the sign, plaintiff's decedent came in contact with a wire of defendant, was electrocuted, and died.
Defendant assigns numerous grounds for error. It contends that the plaintiff failed to prove the essential elements of her case, failed to prove any proximate cause of an alleged negligent act of defendant as alleged, that plaintiff's decedent was guilty of contributory negligence as a matter of law, that the trial court erred in rulings on objections to evidence, that the jury was not properly instructed, that the verdict was contrary to the clear preponderance or manifest weight of the evidence and to law, and that the court erred in not instructing the jury for the defendant at the close of all the evidence, and in failing to grant defendant's post-trial motion.
The evidence was that John Warren Anderson, employer of Gerald Harvey Ploense, in February of 1963 called Illinois Power Company, informing its engineer, Clarence Alburtis, that he intended to erect a sign on the Sinorak property, and asking what clearance from defendant's wires would be necessary. The engineer told him that eight feet was required. Anderson stated that he was planning a taller sign and that Illinois Power Company would either have to relocate its lines to allow him to put in a taller sign or he would design a lower sign. He indicated that he either would redesign the sign so that it would have adequate clearance or he would contact Illinois Power Company to make adjustments to its lines. Anderson did not call the company again until after plaintiff's decedent's death.
Some time after Anderson's conversation with Alburtis, Anderson and his employee, Robert Hohnstreiter, went to the Sinorak site and dropped a tape measure from what appeared to be the level of the lowest wires down to the driveway surface of the entrance drive to the property. Anderson testified this measurement was 38 feet and Hohnstreiter testified it was 35 feet from the lowest wire level to the driveway.
The sign was constructed over a two-month period by Anderson and erected on the premises over a two-week period. Both Ploense and Hohnstreiter worked on erection of the sign during this two-week period. The evidence showed that during this period the wires of defendant were above the sign, open and visible, and that the sign was designed to avoid any necessity for the workmen to come within ten feet horizontally of the wires even if working on top of the sign.
The sign was forty feet in length, and as erected extended in a north-south direction. As originally constructed it contained the word "Smorgasbord," with the word "Lunch" on top and to its south end, and the word "Dinner" centered beneath the word "Smorgasbord." It was a back-to-back sign, reading the same on both sides. It had been constructed in a north section and a south section. The sections were bolted together, being 30 inches apart, back to back, one side facing easterly and one westerly. Only some structural steel members were in between the faces, tieing them together, with a small electrical transformer that operated the neon sign bolted to the structural steel. The smorgasbord portion of the sign was designed to be 30 foot tall. Four wires of defendant ran in an east-west direction, located above and toward the north end of the sign. These wires carried 7200 volts of electricity and were not insulated. Anderson testified that at the time the sign was installed in July and August 1963, the wires were at least 10 feet above the sign and that he was able to stand erect on the sign and walk under the wires.
On the day of the occurrence, which was one or two months after the last work had been done on erection of the sign, Ploense and Hohnstreiter were engaged in moving some lettering on the sign from one portion of the sign to another. The owner of the premises had decided to have put up on the sign the name "Sinorak." This required moving the word "Dinner" to the right and the word "Lunch" from the top so as to position it to the left and beneath the word "Smorgasbord". The word "Lunch" was being placed to the left or south to stay away from the wires. Ploense did the drilling and Hohnstreiter put the bolts in to hold the sign. Ploense then tightened the bolts.
As the last part of the operation, Hohnstreiter was using an acetylene torch to cut clips off of the poles on top of the sign so as to permit slipping the word "Sinorak" over them. Ploense and Hohnstreiter had worked on the job all day. Both Ploense and Hohnstreiter were up on the sign when about completed at 2:00 or 3:00 P.M., Ploense was tightening up the bolts in between the sign. Hohnstreiter testified that he went down between the signs on an aluminum ladder which extended from the ground up in between the two faces of the sign, and climbed up a wooden ladder placed against the sign in order to cut the clips off of the poles. This job took about 30 minutes, during which time he did not see Ploense as Ploense was working on the lunch sign below him and about ten feet below the top of the sign. Hohnstreiter testified that as he was completing the cutting, he heard an arcing sound and turned around and saw Ploense at the far north end on top of the "Smorgasbord" sign with an electric wire in his hand. Hohnstreiter got the torch out of his hands, removed his goggles and tried to work towards Ploense, walking between the sign faces on the small angle irons that were 30 inches apart. Ploense had both arms over a wire, behind his back, and rode the wire down to the top of the sign. When Hohnstreiter was about six feet from Ploense, the wire burned in two on top of the sign and Ploense dropped through. He later was pronounced dead by the coroner.
Prior to the accident there were four wires. The third wire from the north was broken and fell to the ground. It was replaced immediately after the accident by the Illinois Power Company. The day after the occurrence, Alburtis, defendant's engineer, measured the wires. He testified that the measurements then made located the northerly-most wire, a hot wire, as three foot seven inches above the top of the letter "S" on the sign; the next wire, being the neutral wire, as five feet nine inches above the sign. The third wire he testified was a hot wire and the one which was replaced after the accident, and it was five feet eleven inches above the sign. The fourth wire was furthest to the south and was four feet two inches off the top of the sign. He further testified that he did not know how high or low these wires were on the date of the occurrence.
Alburtis testified that at all times from the date of installation to the date of the occurrence the height and span of the wires met or exceeded the General Order of the Commerce Commission, which required a minimum height for the line above ground of approximately 24 feet 4 inches. He further testified that the General Order of the Commerce Commission referred to systematic inspection of power lines; that this customarily was done by all of their personnel in going about to read meters or in driving about. He knew of no report having been made prior to the accident as to proximity of the wires.
Over objection of the defendant, Anderson was permitted to testify by an order of proof that he had worked with Ploense with electricity during the three years he had been employed and had observed him around electrical energy and that his opinion was that Ploense had careful habits conducting himself in the presence of electrical energy. Hohnstreiter also ...