APPEAL from the Circuit Court of Williamson County; the Hon.
JOHN H. CLAYTON, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
This is an appeal by the General Telephone Company of Illinois from a judgment for plaintiff George Felty in a personal injury action in the Circuit Court of Williamson County. The action was based on the alleged negligence of five defendants, including the telephone company, in the process of transporting a large oil circuit breaker through the streets of the city of Metropolis. The jury returned a verdict of $950,000 in favor of plaintiff against all the defendants.
General Telephone raises several issues on this appeal: whether the trial court erred in denying its motions for directed verdicts and for judgment n.o.v.; whether allegedly improper conduct by plaintiff's counsel prejudiced the jury's verdict; whether the court erred in failing properly to instruct the jury as to appellant's theory of the case; whether the court improperly admitted certain evidence; and whether a post-judgment loan-receipt agreement entered into by plaintiff and the other four defendants was invalid. Because we have concluded that the conduct of the telephone company, if negligent, was not the legal or proximate cause of plaintiff's injury, we need reach only the first of these issues.
Plaintiff, a 48-year-old journeyman lineman, had been hired to ride atop circuit breakers (which weighed nine tons each and were 16 feet 2 1/2 inches in height) as they were moved on a lowboy trailer pulled by a truck. His job was to lift power lines, tree limbs and telephone cables above the load as necessary along the route. On the third trip along the same route, the load came into contact with a telephone pole support cable owned and maintained by General Telephone. The cable caught the top of the bushing of the circuit breaker on which plaintiff was riding, and he was thrown to the pavement below, sustaining injuries that resulted in permanent paralysis of his lower extremities.
The complaint alleged that the telephone company was negligent in allowing the cable to extend across the roadway at a height less than 18 feet above the surface thereof, in violation of Rule 232 of the Rules for Construction of Electric Power and Communications Lines of the Illinois Commerce Commission; allowing the cable to extend across the roadway at a height of approximately 17 feet 10 inches above the surface when it knew or should have known that lowboy trucks carrying circuit breakers approximately 18 feet high were likely to pass under the cable; failing to raise the cable to a safe height above the roadway surface; and failing to inspect the height of the cable to determine whether or not it was less than 18 feet above the roadway surface.
• 1 Although the testimony was conflicting and the measurements upon which it was based were imprecise, there was sufficient evidence to raise a question for the jury as to whether or not the telephone company was negligent. Even if it were negligent, however, we think that, as in Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665 (1942), the intervening, independent acts of the other defendants were the proximate cause of plaintiff's injuries. In Merlo, judgment notwithstanding the verdict was granted to the defendant power company in a wrongful death action where plaintiff's decedent had been electrocuted as the boom of a negligently operated crane came into contact with a sagging, improperly insulated wire owned by the power company. Finding that the power company had a duty to maintain the wire and that "there was sufficient evidence in the record tending to prove the negligence charged * * * if it was further established by the evidence that such negligence was the proximate cause of the injury," the court in Merlo nevertheless decided as a matter of law that the lack of insulation and the sagging wire only furnished a condition and the "intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries * * *." 381 Ill. 300, 316, 318, 45 N.E.2d 665, 674-75.
In the instant case, all the parties involved were aware of the presence of the cable; in fact, the entire purpose of the elaborate preparations and precautions planned, although obviously not properly executed, was to insure the safe passage of the circuit breakers under overhead obstacles, including the telephone support cable here in question. Plaintiff's sole purpose in being on top of the circuit breaker was to assist in this safe passage. The route to be taken in the movement of the circuit breakers and the obstacles to be cleared had been both planned and noted approximately one month before the date of the actual movement. An employee of New Berlin Transit, Inc., the defendant which supervised the transportation of the circuit breakers, estimated the cable to be slightly more than 18 feet above the roadway. Notwithstanding, the telephone company was never notified of the movement of the circuit breakers through Metropolis or requested to assist by temporarily removing or raising the cable in question. The plaintiff himself examined the route of travel and possible overhead obstacles to be cleared.
Prior to the accident, the same truck, loaded with identical circuit breakers, driven by the same driver, had made two trips over the route taken at the time of the accident without incident. On the previous occasions the truck moved slowly under the cable. Plaintiff testified that on each occasion the truck had slowed to a stop before proceeding, and that he raised the cable about one-half an inch or one inch above the circuit breaker before the truck proceeded. On the previous occasions a "spotter" had preceded the truck and flagged it to a stop before it reached the cable.
On the third trip, the "spotter" stopped the truck about a block before reaching the cable but then left to locate a second truck traveling behind the truck on which plaintiff was riding. The driver then proceeded under the wire at a constant speed; he did not slow the truck. The plaintiff, observing the wire, yelled to the driver to slow down. Apparently the driver did not hear, as he continued without stopping and the accident occurred.
If negligence, defendant's conduct does not encompass the risk to plaintiff revealed by these facts. There is no doubt that this overhanging cable was a cause of plaintiff's accident, as "but for" the presence of the cable the accident would not have happened, but under these facts defendant's conduct is not the legal, or proximate, cause of plaintiff's injury. (For a discussion of the difficulties of applying the concept of "proximate cause," see W. Prosser, Law of Torts § 41 et seq. (4th ed. 1971).) The basis of liability and non-liability is not easily resolved in terms of legal theory. Whether analyzed in terms of "duty" or "foreseeability" (see Cunis v. Brennan, 56 Ill.2d 372, 308 N.E.2d 617 (1974); cf. Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1 (1974), and Ray v. Cock Robin, Inc., 57 Ill.2d 19, 310 N.E.2d 9 (1974)), the ultimate determination of non-liability under these unusual factual situations is based, as Professor Prosser suggests, on considerations of policy and some sense of fairness or justice. W. Prosser, Law of Torts §§ 42, 43 (4th ed. 1971).
• 2, 3 "If a negligent act or omission does nothing more than furnish a condition making an injury possible, and such condition, by the subsequent independent act of a third person, causes an injury, the two acts are not concurrent and the existence of the condition is not the proximate cause of the injury." (Briske v. Village of Burnham, 379 Ill. 193, 199, 39 N.E.2d 976, 979 (1942).) As in Briske, it was the negligent inattention of the driver of the truck transporting the circuit breakers, the absence of the spotters or lookouts, or the concurrence of both that was the immediate cause of plaintiff's injuries. The defendant could not reasonably foresee such unusual, intervening acts of negligence; the express purpose of the precautions taken was to insure that the circuit breakers would be transported safely under overhead wires and objects, the existence of which was known to all parties concerned with the movement of the circuit breakers.
These acts or omissions were superseding or intervening causes which under these facts should relieve the telephone company of liability. (See Restatement (Second) of Torts §§ 440, 441 (1965).) We agree with appellant that the facts in Merlo are similar to the facts in this case. In a recent opinion of the Illinois Supreme Court (Davis v. Marathon Oil Co., 64 Ill.2d 380, 356 N.E.2d 93 (1976)), the court, while noting that each case must turn on its own facts, cited Merlo with approval. (See also Watson v. Byerly Aviation, Inc., 7 Ill. App.3d 662, 288 N.E.2d 233 (3d Dist. 1972); Ferguson v. Southwestern Bell Telephone Co., 8 Ill. App.3d 890, 290 N.E.2d 429 (5th Dist. 1972).) We therefore hold that the intervening negligence of the other defendants was the sole, efficient cause of plaintiff's injuries.
For the foregoing reasons, the judgment of the Circuit Court of Williamson County is reversed.
Mr. JUSTICE GEORGE J. MORAN, dissenting:
In urging us to find as a matter of law that the negligence of General Telephone was not the proximate cause of plaintiff's injuries, General Telephone cites the case of Merlo v. Public Service Co., 381 Ill. 300, 45 N.E.2d 665. In that case, judgment notwithstanding the verdict was granted to the defendant power company in a wrongful death action where plaintiff's decedent had been electrocuted as the boom of a negligently operated crane came into contact with a sagging, improperly insulated wire owned by the power company. Finding that the power company had a duty to maintain the wire and that "there was sufficient evidence in the record tending to prove the negligence charged * * * if it was further established by the evidence that such negligence was the proximate cause of the injury," the court in Merlo nevertheless decided as a matter of law that the lack of insulation and the sagging wire only furnished a condition and the "intervening, independent act of the crane operator was the efficient and proximate cause of the fatal injuries * * *."
I agree with appellant that the facts in Merlo are similar to the facts in this case and if Merlo were the sole authority on this question, we should decide this issue in favor of defendant. However, in my opinion subsequent supreme court cases indicate that if the supreme court were now faced with the same facts as those in Merlo, it would decide the question of proximate cause differently. It would now most probably say that this was a question of fact for the jury.
For example, shortly after the decision in Merlo, the supreme court decided the case of Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497. In Neering the plaintiff filed a complaint for damages as a result of being assaulted while she was awaiting the arrival of a train. The jury awarded her a verdict which the trial court refused to overturn. The defendant contended that its negligence, if any, was not the proximate cause of plaintiff's injuries because an abnormal criminal act of a third person broke the chain of causation.
The supreme court held that under the circumstances the question of proximate cause was for the jury, saying at pages 380-81:
"An intervening efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was itself probable or foreseeable. [Citations.] What is the proximate cause of an injury is ordinarily a question of fact to be determined by a jury from a consideration of all of the evidence." 383 Ill. 366, 380-81.
In Ney v. Yellow Cab Co. 2 Ill.2d 74, 117 N.E.2d 74, the appellate court affirmed a judgment of the trial court fixing liability on the defendant for violation of the Uniform Traffic Act. The complaint charged that defendant, by its servant, negligently permitted its taxicab to remain unattended on a Chicago street without stopping the engine or locking the ignition or removing the key, contrary to a section of the Act. The undisputed facts revealed that a thief stole the taxicab and while in flight ran into plaintiff's vehicle causing property damage. The defendant contended that its negligence, if any, was not the proximate cause of the injury.
In holding that whether or not the defendant's negligence was the proximate cause of plaintiff's injuries, the court gave a long and scholarly discussion of the proximate cause doctrine. In holding that the case presented a question of fact for the jury as to whether the thief's acts were foreseeable and thus the proximate cause of plaintiff's damage, the supreme court said,
"Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence and both our State and Federal constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues such as negligence and proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a ...