APPEAL from the Circuit Court of Cook County; the Hon. WALTER
J. KOWALSKI, Judge, presiding.
MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:
This appeal involves a suit by Nelda Cratsley as administrator of the estate of Raymond Cratsley, deceased, to recover for personal injuries received by the decedent, a city of Chicago sanitation worker, when he came into contact with a high-voltage overhead electrical transmission line of the defendant Commonwealth Edison Company while in the course of his employment in an alley in Chicago, Illinois.
The trial court at the close of plaintiff's case dismissed the strict liability count of plaintiff's complaint and also struck and dismissed certain counts of negligence allegedly committed by defendant. The jury returned a verdict for defendant, and answered "yes" to a special interrogatory concerning decedent's contributory negligence. Plaintiff appeals from the judgment entered on the jury verdict.
On the night of June 25, 1969, severe thunderstorms passed through the Chicago area with wind gusts in excess of 50 miles per hour. This weather condition caused many transmission wires in the Chicago area to fall. Though the exact time that the electrical wire in question broke and fell is unknown, it appears to have been first noticed hanging in the alley on June 26, 1969, at about 3:30 or 3:45 p.m. by two neighborhood boys. A second broken wire was observed by the boys to be hanging 20 to 25 feet away from the first wire.
A garbage truck on which decedent was employed as a laborer entered the alley at about 4:15 p.m. The truck proceeded along the alley with the laborers emptying cans of garbage at its rear. Raymond Garlanger, the driver of the truck, testified that after the truck had proceeded to about the middle of the alley he observed two small boys standing by some garbage drums holding a small sign which read, "Danger, live wire." Garlanger stated that decedent walked from the rear of the truck along the driver's side past the driver's open window at which time Garlanger spoke to decedent saying "There's wire hanging there. Be careful. It might be hot." Though decedent was about one foot away from the side of the truck at the time the driver spoke to him, he nevertheless proceeded toward the wire and reached over his head to grab it with his left hand while using his right hand to flag the truck through. While holding the wire, decedent took a step backwards and came into contact with either a metal garbage can or metal fence. Decedent suffered severe electrical burns, the consequences of which resulted in his ultimate death. Garlanger stated that there had been sufficient clearance for the truck to pass without any movement of the wire.
The wire which was covered with a weather proofing material carried between 2100 and 2400 volts and was strung 30 to 35 feet above the ground before it broke. A Commonwealth Edison Company repair crew reported "tree contacts" and "wind" as the cause of the break.
Plaintiff's first contention on appeal is that the court erred in dismissing count four of her complaint which stated a cause of action sounding in strict tort liability. The Illinois Supreme Court in the leading case of Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, adopted the doctrine of strict tort liability which coincided with the view expressed in the Restatement (Second) of Torts § 402(A) (1965). That section states that:
"(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."
1 The substance of plaintiff's allegation in count four of her complaint is that defendant is in the business of manufacturing, transmitting and selling to members of the public electrical energy, including poles, generators, transmission wires and the like; and that these transmission wires are not reasonably safe for their intended use because they are not of adequate strength or thickness or durability to withstand the wear and tear of the transmission of energy or to withstand the amperes of current transmitted by the defendant through the lines. We do not believe that these allegations are sufficient to establish a cause of action based upon strict tort liability. In a recent case involving injuries which were suffered when an ...