Postal Telegraph-Cable Co. v. Likes

Mr. Chies Justice Scott delivered the opinion of the .court: It is first urged that the court erred in refusing to direct a verdict for appellant at the close of all the evidence. The reasons assigned in support of this contention are, first, that the evidence failed to establish the existence of any duty on the part of appellant charged by the declaration to have been violated; second, that the plaintiff assumed the risk of injury from the feed wires; and third, that there was a fatal variance between the declaration and the proof as to the ownership of the pole and as to the charge of joint negligence. In regard to the first of these reasons, there are several distinct breaches of duty alleged in each count. The first count charges that the defendants failed to furnish plaintiff a safe place in which to work, that they failed to warn him of hidden dangers, and that they failed to insulate the feed wires or otherwise protect and warn plaintiff of the danger of coming in contact with those wires. Proof of facts from which the law would impose a duty upon appellant to furnish a safe place in which to work, or to warn plaintiff of hidden dangers incident to his work, or to insulate the feed wires, and proof of a violation of either of those duties, would be sufficient proof of negligence on the part of appellant under this count. In actions ex delicto it is not necessary that the plaintiff prove all the material allegations of his declaration. If he prove enough of the material allegations to make out a cause of action he is entitled to recover, even though there are other averments of the declaration which are not proved. (Louisville, New Albany and Chicago Railway Co. v. Shires, 108 Ill. 617; City of Rock Island v. Cuinely, 126 id. 408.) The second count is in the same condition as the first, in that it contains more than one charge of negligence. It counts upon a negligent order by appellant’s foreman and upon a failure to insulate the feed Wires. In the view we take of this case it will only be necessary to consider the first count in the light that it charges a duty upon appellant to warn plaintiff of hidden dangers, and the second count in so far as it alleges that the foreman gave plaintiff a negligent order. We deem it apparent from the evidence, the substance of which is contained in the statement of facts preceding this opinion, that appellant’s foreman, McLaughlin, had far more reason than had Likes to anticipate the presence of feed wires upon the pole in question. Had Likes known that uninsulated feed wires were being used by the railway company in connection with its railway along Waukegan avenue, and that these wires had caused the death of a lineman, at a place on the same avenue only a few blocks south, on account of being in close proximity to other wires, it is reasonable to believe that he-would have avoided contact with these wires even though he did not certainly know that they were charged with a dangerous current of electricity. His testimony, however, shows that he had never worked in the vicinity of Port Sheridan except on the Saturday preceding the injury, and then not near the highway, and was not familiar with this pole or its surroundings, and that he did not know of the presence of feed wires along the highway; that all high tension wires around which he had previously worked had been insulated; that these feed wires had the appearance of ordinary telegraph or telephone wires, and the evidence shows that their location on the pole, at a point below the arm carrying telephone wires, would indicate to a lineman that they were either telegraph or telephone wires, and harmless. Although the duty of inspection of wires and poles upon and around which a lineman is working may ordinarily be upon such lineman where his knowledge or previous experience is such that he may know and appreciate the danger to which he is exposed, yet where the master knows of peculiar and unusual dangers which a lineman will encounter in the performance of certain work or has reason to anticipate the presence of such danger, and the danger is of such a nature that the servant, from lack of knowledge, may not appreciate or understand it, the master owes the servant the duty of warning him of such danger. (4 Thompson’s Commentaries on the Law of Negligence, sec. 4118.) The master’s duty in each case must necéssarily depend upon the ability of the servant to recognize and appreciate the danger which he will encounter in the performance of his work, and the master can not act upon the assumption that the servant, being a man of average intelligence, will recognize and appreciate latent and hidden dangers which cannot be discovered by ordinary inspection and of which the servant has no knowledge. McLaughlin, in directing and superintending the string- . ing of these wires, was the representative of appellant and his knowledge was the knowledge of. appellant. (Consolidated Coal Co. v. Wombacher, 134 Ill. 57.) Appellant therefore knew that the wires were to be placed upon poles upon and around which the plaintiff’s employment had not before that time required him to work, and that the plaintiff was therefore necessarily ignorant of any peculiar or unusual danger which might be encountered in ascending the pole. It knew that the railway company was using uninsulated feed wires in connection with its railway along Waukegan avenue, and that those wires, at a point on the highway a few blocks south of the place where plaintiff would be required to work, had been placed in such close proximity to other wires as to cause the death of a lineman working on such other wires. Its knowledge was such that by the exercise of reasonable care for the safety of its servants it might have known of the dangerous character of the feed wires upon the pole, and in such case the law will impute and infer notice to it of their presence and dangerous char- . acter, (Consolidated Coal Co. v. Haenni, 146 Ill. 614,) but the plaintiff’s knowledge and previous experience were not such that he might know or appreciate the danger to which he was then exposed. • Under these circumstances we cannot say that the evidence did not tend to establish the existence of a duty on the part of appellant to warn plaintiff of the danger arising from the presence of the feed wires upon the pole. We are also of the opinion that there was evidence from which the jury might find that appellant, through its foreman, was negligent in ordering the plaintiff to ascend the pole without informing him of the danger to which he might be exposed. The cases cited by appellant holding that the duty of inspection rests with the servant and that the master is therefore under no duty to warn the servant, are cases where the injured servant had an equal opportunity with, or better opportunity than, the master of knowing and appreciating the danger to which he was exposed, and the danger was such 0 as might have been discovered by the servant, with the knowledge shown to have been possessed by him, by ordinary inspection.- Those cases are in these respects distinguishable from the one at bar. It is next urged that the plaintiff assumed the risk of the danger from which he was injured. A servant only assumes the ordinary risks incident to his employment and such dangers as are obvious and apparent. Danger from feed wires attached to a pole at a point below telegraph or telephone wires was shown not to be one of the ordinary risks incident to plaintiff’s employment. In their position below the telephone wires they constituted an unusual risk, which was not incident to the employment of a lineman engaged in stringing telegraph wires. Neither was the danger obvious or apparent. The wires appeared to be ordinary telephone or telegraph wires, and harmless, and their dangerous character would not appear by ordinary inspection. The last reason urged in support of the contention that the court should have directed a verdict for appellant is, that there was a fatal variance, in that each count alleged that the pole on which plaintiff was injured was owned by the railway company, that appellant was engaged in stringing and attaching its wires to an arm on that pole with the knowledge and consent of the railway company, and that the injury occurred by reason of the joint and concert negligence of the two defendants; while the evidence showed that the railway company was not the owner of the pole and did not know that appellant was engaged in stringing wires thereon, and no joint and concert negligence was established against the defendants. The evidence tended to establish a cause of action against the postal company under each of the first and second counts of the declaration without proof of either of the allegations mentioned in the foregoing paragraph. So far as that company was concerned, the evidence tended to * show it guilty of negligence charged by the narr., no matter to whom the pole belonged, and without regard to whether the negligence of another company contributed to the injury or whether such other company knew that it was engaged in stringing wires upon the pole in question. These allegations not being essential to the cause of action against appellant, it was therefore unnecessary to prove them, and it was immaterial if the evidence disproved them. (Louisville, New Albany and Chicago Railway Co. v. Shires, supra; City of Rock Island v. Cuinely, supra; Swift & Co. v. Rutkowski, 182 Ill. 18.) The declaration alleged the presence of apparently harmless,, uninsulated wires upon a pole which it became necessary, in the performance of his duties as a lineman in the employ of appellant or in obedience to an order of his foreman, for the plaintiff to ascend, and that while, in the performance of such duties or in obedience to such order, he was ascending the pole with due care, he came in contact with the apparently harmless, uninsulated wire and was injured. Proof of these allegations, together with proof that appellant knew, or could have known by exercising ordinary care, of the existence of these wires and their dangerous character, and that the plaintiff was ignorant of such existence and character and did not have equal opportunity with appellant to ascertain the same, was sufficient to establish a duty on the part of appellant to warn plaintiff of the danger and to refrain from ordering him to ascend the pole without such warning, and proof of a violation of either of these duties established a cause of action against appellant, unless it appeared that the plaintiff assumed the risk which caused his injury. It is said, however, that as there was no allegation in the first count that appellant knew or ought to have known of the danger, the allegations in regard to the ownership- of the pole and the consent of the railway company to the placing of wires thereon by the postal company were essential to show a cause of action against appellant, as they were the only allegations from which it could be inferred that appellant had, or ought to have had, knowledge of the danger from the feed wires. This count was defective in failing to allege knowledge by appellant, but we do not think the allegations under discussion were intended to, or did, supply this defect. They were dvidently intended to constitute a part of the case stated against the railway company. The count, notwithstanding the defect, however, was sufficient, after verdict, to support a judgment against the postal company. Sargent Co. v. Baublis, 215 Ill. 428. It is also contended that the allegation that the injury occurred by reason of the joint and concert negligence of both defendants was necessary to be proved, because it was the only allegation showing any connection between the injury to the plaintiff and the negligence of appellant. The first count of the declaration alleged that by reason of the failure of appellant to warn plaintiff he came in contact with the.feed wires, and the second count alleged that while he was obeying the negligent order of appellant’s foreman he came in contact with those wires, and it appeared from each count that the injury was occasioned by such contact with the feed wires. It therefore appeared from averments of the counts, other than those charging that the negligence was occasioned by reason of the joint and concert negligence of both defendants, that the plaintiff was injured through appellant’s negligence in failing to warn him of the danger and in giving him a negligent order. We are of the opinion that none of the reasons urged by appellant would have justified the court in giving the peremptory instruction offered by appellant at the close of all the evidence. The railway company offered no witnesses on the trial of this cause. It is urged that the court erred in permitting such company to cross-examine the witnesses introduced by appellant, and to argue to the jury facts brought out by these witnesses after it had announced its intention, at the close of the plaintiff’s evidence, to abide by its motion for a peremptory instruction, which had been refused by the court. There was no error in this action of the court. The railway company, by its conduct in this regard, merely waived its right to have only the evidence introduced by the plaintiff considered as against it, and authorized the court and jury, in determining whether a case had been established against it, to take into consideration the evidence introduced by the postal company as well as that introduced by the plaintiff. In Condon v. Schoenfeld, 214 Ill. 226, relied upon by appellant, the defendant, who introduced no evidence, did not participate in the further trial of the cause and therefore did not waive his motion for a peremptory instruction, and it was there held that the evidence introduced by his co-defendant could not be considered in determining whether a case had been made out against him. It is next contended that the court erred in entering judgment against appellant alone upon a declaration charging joint negligence and upon a verdict finding joint liability. This question has been heretofore decided by this court adversely to appellant’s contention. In Davis v. Taylor, 41 Ill. 405, it was held that taking a judgment against a portion of the defendants amounts to'a dismissal of the case as to the residue, and that in actions ex delicto this may be done because there is no contribution among wrongdoers, and that if the mode of doing it is irregular, it is an irregularity which works no prejudice to those defendants against whom the judgment is taken. Under the authority of the case last cited the action, of the plaintiff in moving for judgment against the postal company alone, and the action of the court in entering- judgment against that company, amounted to a dismissal of the case as to the railway company, and if there was any irregularity in the proceedings in this regard, it is one of which appellant cannot complain. It was also held in Illinois Central Railroad Co. v. Foulks, 191 Ill. 57, that where the jury has returned a verdict against several defendants in an action ex delicto, the plaintiff may dismiss his suit as to a portion and take judgment upon the verdict against the remainder of the defendants. By an amendment to his amended declaration the plaintiff alleged that on account of the injuries received by him he was rendered impotent for the rest of his natural life. He testified that he was in perfect health up to the time he was injured. On his direct examination he was asked by his counsel, “Now, Mr. Likes, how have you been with reference to your virility since the accident?” to which he re-replied, “Almost entirely gone.” The evidence shows that the plaintiff’s nervous system was very seriously impaired by reason of the injuries received by him; that he has temporary periods of insanity and has suicidal and homicidal tendencies, and that it will eventually be necessary to confine him in an asylum for the insane. We think that the evidence tended to show that all of the plaintiff’s disorders, including loss or impairment of virility,' were the result of the injuries received by him on November 4, 1901. There was therefore no error in the action of the court in refusing to strikeout the testimony of Likes that his virility was almost entirely gone, or in refusing to give to the jury appellant’s twenty-second instruction, which would have told the jury to disregard this testimony. The plaintiff testified, over the objection of appellant, that he was married and that one child had been born .of this marriage. It is urged that ihis evidence was introduced solely for the purpose of arousing the sympathy of the jury and increasing the amount of the verdict. For such purpose it was, of course, improper; but the plaintiff’s attorney stated, when offering this evidence, that it was only introduced for the purpose of showing that the plaintiff had virility before he was injured, and such evidence tended to establish that fact. By instruction numbered 18, given at the request of appellant, the court told the jury that if they found one or both defendants guilty, in assessing plaintiff’s damages they must not take into consideration the question whether or not the plaintiff has a wife or family who may be dependent upon him for support. We think this instruction limited the consideration of this evidence by the jury to the purpose for which it was offered, and that appellant was not injured by its admission in this case. The plaintiff was also asked if his child was still living, and answered that it was dead. No objection was made to this question and no motion was made to strike out the answer. Appellant, therefore, did not preserve its right to urge a reversal on account of the admission of this testimony. Appellant offered in evidence an ordinance of the village of Fort Sheridan requiring the railway company to maintain guard wires above its electric wires at all points where wires of other companies were suspended above such electrie wires. The court refused to admit this ordinance in evidence, and appellant contends that this constitutes reversible error. This offer was not accompanied by any promise to show that the appellant relied upon the railway company complying with this municipal regulation. The mere existence of the ordinance could not be regarded by the jury as justification for the order alleged to be negligent or for the failure to warn the plaintiff. The court did not err in excluding this proof. The attorney for the railway company, at the request of the plaintiff’s attorney, made certain admissions as to facts in order to obviate proof of such facts. Appellant contends that the matters so admitted to be true were untrue, and that it was injured thereby. At the time these admissions were made appellant’s attorney stated that they were not to be taken as admissions by his client, and at the request of appellant the court instructed the jury that these admissions were not evidence against the postal company and should not be taken into consideration in determining whether a case had been established against such company. Appellant thus obtained all the relief to which it was entitled on account of the admissions of its co-defendant, and we think that the alleged facts so admitted were not material to the plaintiff’s cause of action against appellant. Appellant offered a number of instructions announcing the rule as to who are fellow-servants, and advising the jury that if the injury to Likes was occasioned by the negligence of a fellow-servant he could not recover. All of these instructions were refused, and it is contended that the court erred in thus refusing to submit to the jury the question whether Likes was injured through the negligence of a fellow-servant. In support of this contention it is urged that the evidence tended to show that at the time plaintiff was ascending the pole he was delayed, hindered and embarrassed by a lack of slack in the wire which he was carrying, and that this condition was caused by a tangle of the xvire which was being unreeled, jerked and pulled by McLaughlin, Weaver and Donnelly, and that the jury could have found from the evidence that the three persons last mentioned were guilty of negligence in this regard, that such negligence was purely that of a fellow-servant, and that such negligence caused the injuries to the plaintiff, and that the instructions were intended to advise the jury that if the injury was brought about by reason of any negligence of McLaughlin, Weaver and Donnelly in this regard the plaintiff could not recover. No count of the declaration charged any negligence in reference to a tangle or lack of slack in the wire, and the jury .were expressly instructed that there could be no recovery unless it was shown, by a preponderance of the evidence, that the plaintiff was injured as a result of the negligence charged in the declaration. The instructions stating the fellow-servant doctrine were properly refused. There was no issue in the case to which they were applicable. The court gave an instruction, upon its own motion, which appellant contends disregarded the defense of assumed risk. The instruction told the jury that the plaintiff had brought his suit upon the theory that he was injured by the joint and concert negligence of the defendants, and it was the function of the jury to determine whether, under the evidence and instructions of the court, the plaintiff had established a case against both of the defendants or either of them or neither of them, and that if the evidence, under the instructions, warranted it, the jury might find one defendant guilty and the other not guilty, or might find both guilty or both not guilty. The evident purpose of this instruction was to announce the law in reference to a recovery against one of two defendants in an action for a tort where the declaration charged that both defendants were guilty of negligence. and the proof established the guilt of but one. The instruction is not one which enumerates the elements necessary to be proved in order that the plaintiff may recover, but expressly refers the jury to the evidence and the instructions of the court in determining whether the plaintiff has established a case against either or both of the defendants or neither of them. The instructions so referred to include instructions submitted by appellant which fully informed the jury as to the defense of assumed risk. There was. therefore no error in giving the instruction under consideration. Appellant complains of the action of the court in refusing its instruction numbered 27. This instruction was upon the assumption of risk by the plaintiff. Seven instructions were given to the jury at the request of appellant stating the law applicable to this defense, and the twenty-seventh instruction was fully covered by those given. Appellant’s instruction numbered 23 was properly refused because it was included in its instruction numbered 3 which was given. The record in this case is free from substantial error, and the judgment of the Appellate Court will therefore be affirmed. , Judgment affirmed.