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06/02/87 Frances Bednar, v. Commonwealth Edison

June 2, 1987

FRANCES BEDNAR, PLAINTIFF-APPELLANT

v.

COMMONWEALTH EDISON, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

509 N.E.2d 687, 156 Ill. App. 3d 568, 109 Ill. Dec. 26 1987.IL.735

Appeal from the Circuit Court of La Salle County; the Hon. L. James Perona, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE BARRY delivered the opinion of the court. HEIPLE and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Plaintiff, Frances Bednar, sued Commonwealth Edison for personal injuries allegedly suffered as a result of tripping over a utility pole that was lying on the boulevard in front of a neighbor's residence. Following a trial in the circuit court of La Salle County, the jury returned a general verdict for defendant. Plaintiff appeals from the verdict and from the denial of her post-trial motion. We affirm.

Evidence adduced at trial established the following facts. In the early evening of Saturday, October 29, 1983, plaintiff was walking along the street on Laura Avenue, Streator, between her own home and that of a neighbor, Carol Hoskins. Plaintiff was returning a catalog that she had borrowed. According to plaintiff, it was a cool, clear and dark evening. She proceeded down the middle of the street because there were no city sidewalks or curbs in that neighborhood. She did not notice whether or not the streetlight on the utility pole standing midway between her home and the Hoskins' was lit at the time. Plaintiff testified that when she reached the point across from the Hoskins' front door, she made a right-angle turn and proceeded onto the grassy boulevard toward the Hoskins' front sidewalk. Plaintiff then fell, hitting her chest on the defendant's utility pole, which had been laid off along the boulevard perpendicular to the Hoskins' sidewalk. As a result of the fall, plaintiff suffered fractures to her wrist and two ribs.

According to the record the 45-foot utility pole in question was laid off by defendant's employees on Friday, October 28, 1983, and was to be installed at a later date. The boulevard area contained gravel and mowed grass. The diameter of the pole ranged from 16 inches at the butt end to eight inches at the top. No signs or special warning devices were placed around the area where the pole lay, and no effort was made by defendant's employees to personally notify residents of the neighborhood that the pole was there.

Bernard Jonen, defendant's construction foreman, testified that he checked the site of the accident on Monday evening, October 31. At that time the streetlight was lit on the utility pole standing within 10 feet of one end of the laid-off pole. Jonen had been employed with Commonwealth Edison for 37 years. He testified that it was not the practice of the defendant utility company to provide any warning devices around poles laid off along the shoulder of a street, such as the one in question. To his knowledge, no utility or construction industry practice required the placing of barricades or warning devices under similar circumstances.

Richard Hoekstra, a lineman for defendant who had participated in laying off the pole in question, corroborated Jonen's testimony that no flags, flashes or barricades were generally used to warn of poles laid off prior to being set.

Photographs of the accident scene display a large, dark brown utility pole lying in the grassy area between the gravel at the edge of a paved street and the lawns of the Hoskins home and the home next door. The daytime photographs show that the pole was clearly visible and unobstructed where it lay.

In addition to the foregoing, plaintiff attempted to place into evidence expert testimony by photographer Arthur Sala for the purpose of comparing light meter readings in the area where plaintiff fell. However, after an offer of proof, the trial court sustained defendant's objection to the testimony on the ground that Sala's tests, which were conducted at 10 p.m. in June of 1986, were not shown to have been made under conditions similar to those which existed at the time of plaintiff's fall in October of 1983.

At the close of plaintiff's case in chief, both parties rested. Defendant moved for and was granted a directed verdict on count II of plaintiff's complaint, charging a violation of the Public Utilities Act (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 5-201, as amended). Plaintiff was then granted leave to amend her complaint to add count III, charging wilful and wanton misconduct. Defendant moved for and was granted a directed verdict on this count as well. The matter proceeded to closing argument and jury instructions on count I, charging common law negligence, only.

In this appeal, plaintiff raises seven issues for our consideration: (1) whether utility companies are held to a "high degree of care" in installing utility poles; (2) whether defendant owed a duty to exercise a high degree of care by virtue of the Illinois Commerce Commission's General Order 160; (3) whether defendant owed a duty to provide warnings by virtue of its own work rules; (4) whether the trial court erred in directing a verdict for defendant on count II of plaintiff's complaint; (5) whether the trial court erred in refusing to admit testimony by plaintiff's expert witness; (6) whether the trial court improperly ...


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