APPEAL from the Circuit Court of Du Page County; the Hon.
EDWIN DOUGLAS, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 30, 1980.
Frank J. Haberman sued Commonwealth Edison Company (Edison) to recover for injuries received when he fell from an electrical service pole. In his original complaint the plaintiff charged defendant with negligence. At the close of plaintiff's case in chief in a jury trial he filed an amended motion to add a count for general negligence, based on res ipsa loquitur. The judge reserved his ruling until the close of proofs. At the close of the evidence the plaintiff tendered a motion for directed verdict based on the general allegations of negligence, which the judge denied. The jury in answer to a special interrogatory found Haberman guilty of contributory negligence and returned a general verdict in favor of Edison. A motion for judgment notwithstanding the verdict was denied. Haberman appeals, contending that his motion for a directed verdict and for judgment n.o.v. were improperly denied and that it was error to permit the issues of liability and contributory negligence to go to the jury.
Plaintiff was employed as an electrician for Edward Lewis, an electrical contractor, whose firm had contracted to work on a particular project for the Butler International Golf Course, which was to host the Western Open golf tournament. The work was the installation of a three-phase electrical service to be installed on a service pole located on private property across the street from the golf course. (Hereinafter referred to as the "service pole".) A larger pole with a transformer on it was owned by Edison and was located approximately 70 feet from the Butler property. There were two lines connecting the main pole to the service pole. The uppermost line provided a single-phase service, which existed and was operational at the time the project began. The lower line was installed by Edison approximately 30 days prior to the accident. In order to provide the three-phase system on the service pole, the second wire was attached to it by means of a device termed a "spool deadend cleavice." A wire was entered through what was termed the deadend bale and wrapped around an insulated spool. The cleavice includes a bolt by which it is attached to the pole, extending through it, and tightened with a nut, leaving part of the bolt extending. Edison also installed a second transformer on its main pole, since this was required to operate the three-phase system.
On June 20, 1974, it was plaintiff's duty to run a service from the bottom of the pole to the area near the cleavice. He was to install a meter box and connect a riser to the service pole. A riser is a 2-inch pipe with four wires inside which are pushed through the pipe while it is on the ground. The riser is then lifted and fastened to the pole with brackets or clamps. At the top of the riser is a device called a service head, which has four holes in it through which the wires are run.
It was not plaintiff's job to connect the wires to Edison's line. He was merely to run the lines near the cleavice and to leave the four wires hanging out unconnected until either the village inspector or the county inspector checked the work.
Just prior to the accident, plaintiff was on a ladder approximately 15-20 feet off the ground. His employer, Lewis, was on the ground. Plaintiff was attaching the last bracket on the service head near the top of the pole. As he stepped up the ladder in an attempt to get more leverage to turn the screws which fastened the brackets to the pole, his hand came in contact with the protruding end of the fork bolt, he received an electric shock, and fell from the ladder.
Plaintiff's employer, Lewis, testified that when he first got to the scene of the accident he considered it unusual that there were two services on the pole, as in his experience on a private property pole one service usually took care of everything. He admitted, however, that he had never worked on making a one-phase system into a three-phase system. He said that when he returned to the job site the next day and examined the pole he tested the fork bolt and the riser and found that the fork bolt was energized. After testing, he inspected the cleavice and discovered that the deadend bale had slipped off the ceramic insulator spool, thereby energizing the cleavice and sending electricity through the bolt attachment.
The only serious dispute in the evidence relates to the issue of contributory negligence. Plaintiff admitted that he did not check the cleavice before he went up the ladder. He also did not look to see whether the deadend bale was around the insulator although he was about 10 inches away at the time of the accident. He said that he had no reason to do so based upon his experience, which was that he had never before found a fork bolt on a pole to be electrified. Plaintiff testified that he was able to observe the various lines running from the Edison pole to the service pole and was able to see the three-phase wire. He stated that in his prior experience he had never seen a situation like this one since Edison usually came in afterwards to string the wires.
Plaintiff testified that the work he was doing did not require rubber gloves because everything he was working on was dead; he similarly stated that he never wears rubber gloves when installing a riser and is not intending to hook up any wires. He admitted, however, that he did not wear rubber gloves, although he had some available and further admitted that rubber gloves would have insulated him from shock. His employer also testified that there was no discussion between him and plaintiff about wearing protective rubber gloves and that generally rubber gloves were not worn when a riser is put up and no connections were to be made.
Harris Langeler, crew leader for Edison, testified under section 60 of the Civil Practice Act that when they attached the cleavice to the pole the deadend bale was wrapped around the insulator. He further testified that he energized the second line after it was hooked up from the Edison pole to the service pole. He stated that after the accident he saw that the bale was then off the insulator spool and touching the metal fork; but at the time when the job was done, he had looked up and found that everything looked proper before he instructed another employee to energize the line. He stated that there is no rule or regulation which prohibits energizing the three-phase line prior to the electricians coming in and installing the service head; rather, he said it is common practice to leave the job completed. Langeler testified that it was common practice for Edison to provide the cleavice and fork bolt to the general contractor who would install them; but that in this case the cleavice had already been installed by Edison. He said it was done both ways, however. He also testified that in this case Edison did not go back and check the installation of the cleavice before the independent contractor did his work.
Langeler further testified to the safety rules and regulations of Edison pertaining to electrical pole installation and maintenance. He stated that the regulations imposed upon his employees are that: (1) before a man can climb a pole, he has to have a hard hat on; (2) he has to carry rubber gloves with him; (3) he is required to wear a safety belt at all times; (4) when he comes into close contact with live wires, he is required to put his rubber gloves on. He stated that these rules are enforced and recognized in the industry.
1, 2 Plaintiff relies upon the doctrine of res ipsa loquitur for recovery. The doctrine, in a proper case, permits "proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant * * *." (Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, 449.) The requisite elements have been stated:
"(1) that the event must be of a kind which ordinarily would not occur in the absence of someone's negligence; (2) that the instrumentality which caused the injury must have been within the exclusive control of the defendant; and (3) that the plaintiff was in the exercise of ordinary care. ...