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Spence v. Commonwealth Edison Co.

NOVEMBER 20, 1975.

THOMAS J. SPENCE, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 20, 1976.

Plaintiff, Thomas J. Spence, brought this action in the circuit court of Cook County to recover damages for personal injuries sustained due to the alleged negligent and wilful and wanton conduct of defendant, Commonwealth Edison Company. The case was tried before a jury. At the conclusion of all the evidence, defendant tendered a special interrogatory asking whether at the time of and immediately prior to the occurrence the plaintiff was guilty of contributory negligence. The jury answered the special interrogatory in the affirmative and returned a verdict in favor of defendant. Judgment was entered on the verdict and plaintiff appeals.

The amended complaint consists of two counts. Count I states that at the time of the injury plaintiff was in the exercise of that degree of care which a reasonably careful minor of 16 years of age would use under similar circumstances; that defendant owned and maintained certain power lines running along a side-lot easement at the northern boundary of plaintiff's property; and that defendant, notwithstanding its duty to exercise the highest degree of care by complying with the General Order of the Illinois Commerce Commission and its own Distribution Engineering Department Guide, committed one or more of the following acts which was the proximate cause of plaintiff's injuries:

(a) Failed to insulate its power lines when it knew that the location of its power lines created a dangerous and hazardous condition to plaintiff and the members of his household.

(b) Failed to insulate its power line with Tree Wire (EM 28150) pursuant to its District Engineering Department Guide No. DEG-21 when said power line was built in a side-lot easement.

(c) Failed to properly relocate or reposition its power line to eliminate the dangers to plaintiff and plaintiff's household when it knew or should have known, that said relocation or repositioning was necessary to eliminate the dangers to all persons.

(d) Failed to reposition its power line to comply with the General Order of the Illinois Commerce Commission by allowing said power line to have less than 8 feet vertical and/or 3 feet horizontal clearance from plaintiff's antenna.

Count II realleges the pertinent paragraphs of Count I and charges defendant with wilful and wanton misconduct.

In its answer to the amended complaint, defendant denies that plaintiff was exercising due care for his own safety at the time of the occurrence, and alleges that a radio tower and antenna located on plaintiff's property was erected in violation of certain provisions of the Basic Building Code of the Building Conference of America. The answer states that regulations contained in the Basic Building Code were duly adopted and made part of the ordinances of Hoffman Estates pursuant to Article X Section B(1) of Village Ordinance # 34-1961.

On appeal plaintiff makes numerous assignments of error. He contends that the trial court erred in allowing provisions of the Hoffman Estates Building Code into evidence; that the issue of defendant's wilful and wanton misconduct was improperly withdrawn from the jury; that certain paragraphs of the complaint were improperly stricken; that the trial court abused its discretion by denying plaintiff leave to file a second amended complaint; and that the trial court's ruling on numerous evidentiary matters were erroneous. Further, plaintiff argues that the jury was improperly instructed; and that judgment should have been directed as a matter of law on behalf of plaintiff.

The evidence discloses that in 1961 and 1962 defendant planned and constructed electrical installations in Hoffman Estates, Illinois. One such installation was built on a side-lot easement at the northern lot line of property located at 310 Pierce Road in that Village. The easement is designated "side-lot" because it runs along one side of the property, rather than the back of the property (a back-lot easement). The installation consisted of a utility pole (pole # 73) at the northwest corner of the lot, and two bare wires running east and west along the easement. The top wire carried 7200 volts of electricity; the lower wire conducted no electricity. The high voltage wire was built on pole # 73, directly above the neutral wire.

Sometime thereafter the Spence family moved to the dwelling at 310 Pierce Road. The home was a single-floor structure facing in a westerly direction. A garage was attached to the north side of the house. In 1967 plaintiff, then 14 years old, purchased a 30-foot 9-inch radio tower and erected it next to the north wall of the garage. The tower, a three-sided metal structure with stairs for climbing, was imbedded in concrete and bolted to the side of the garage. Plaintiff grounded the tower by wiring it to underground copper rods.

At the time he constructed the tower plaintiff did not know the two electrical wires running in the north side-lot easement were bare. He ascertained that fact, however, on one of his first climbs up the tower. Although he realized one of the lines was a "hot wire" he did not know which line carried electricity and did not know how many volts were transmitted. He knew that 30 feet of galvanized steel constitutes a conductor of electricity and that the human body well grounded coming into contact with electricity is also a good conductor.

In February of 1968 plaintiff purchased a "colinier" antenna to be placed on top of the radio tower. The unit consisted of a 20-foot vertical element and 3 horizontal radial arms. The horizontal arms were bracketed to the lower portion of the vertical element and extended in three directions at 120° angles from each other. The vertical portion of the antenna was the transmitting and receiving element while the horizontal arms were designed to prevent distortion. The 8-foot 6 1/2-inch radial arms were telescopic in design and their length could be decreased to a little over 4 feet.

Shortly after purchasing the colinier antenna plaintiff placed it on top of the radio tower. The antenna's horizontal arms, extended their maximum 8-feet 6 1/2-inch length, were pointed north, southeast and southwest. About a week later plaintiff replaced the colinier with a "beam" type antenna borrowed from a friend. The "beam" type consists of a 6-foot beam mounted on an 18-foot mast. The beam runs parallel to the ground and three vertical elements cross the horizontal bar. The beam, a directional antenna, is attached to a rotor and can be moved in various directions to send or receive the strongest signal. The colinier antenna is not directional and though the direction of the horizontal radials may vary 20° due to the wind condition, the position of the antenna is not purposefully changed.

The colinier antenna was re-installed on top of the tower by April 1968. That antenna remained on top of the tower "for quite a while" although plaintiff took it up and down to make mechanical adjustments. Plaintiff stated that between August 21 and September 26, 1968, the colinier antenna was on top of the tower and the horizontal arms, ...


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