Chicago Telephone Co. v. Schulz

He. Justice Adams delivered the opinion of the court. The plaintiff’s counsel argue that the evidence shows that the plaintiff received an electric shock, and that the jury were warranted in so finding. In. view of the conclusion we have reached, after a very careful consideration of the evidence and the arguments of counsel, we do not find it necessary, nor do we deem it expedient to pass on this question. It was incumbent on the plaintiff, on the hypothesis that she received an electric shock, to prove that the shock was occasioned 'by the defendant’s negligence. Negligence cannot be inferred from the fact of the shock. Plaintiff was in the defendant’s employ, and the doctrine res ipsa loquitur has no application as between master and servant. Omaha Packing Company v. Murray, 112 Ill. App., 233, 238-9, and cases there cited. .The trial court, by instructions 12 and 15, instructed the jury, in effect, that if they believed from the evidence that the plaintiff received an electric shock, as alleged, that fact was not evidence of negligence on the part of the defendant, and that it was incumbent on the plaintiff to prove negligence of the defendant by a preponderance of the evidence. Yet, while counsel for’ appellee, in their printed argument, refer to these instructions without dissent, and disclaim reliance on the doctrine, they cite cases from other jurisdictions apparently in support of it. Counsel for plaintiff also rely on what they call a promise to repair. The evidence referred to in the preceding statement shows that all the plaintiff complained of was that the drop did not restore; that there was something wrong with the line, as she had gone in on it and could not get anybody, and that Mr. Francis, the manager, said he would have it attended to. But the evidence also shows, without contradiction, that the mechanism which operated the drop had no relation to the line current. Miss Kate Ryan, who sat about 18 inches from plaintiff, to her right, at the same switchboard, was called by plaintiff and testified, in substance, that she, the witness, had occasion to use the line sometimes two or three calls to the minute, and that at the time of the alleged accident, and immediately prior thereto, the drop acted as it always did, that it came down as it always did ever since witness had been operating where she then was. The evidence shows that there was no danger to be anticipated from the fact that the drop did not restore, and that the apparatus and line, almost immediately after the alleged accident, was found to be in perfect order. Had the line been tested just prior to the alleged accident, it is apparent from the evidence that the result would have been the same. Plaintiff, herself, testified that from the time she spoke to Mr. Francis,_ in the morning, until three o’clock in the afternoon, she had no trouble with the line, Excluding the doctrine res ipsa loquitur as being inapplicable, we find no sufficient evidence of negligence on the part of defendant, as charged in the declaration. As the cause must be remanded for another trial, we will next consider certain alleged errors of the trial court. We are of opinion that defendant’s instruction 6, to the effect that the evidence is insufficient to support the amended second additional count of the declaration, should have been given. We find no error in the refusal of defendant’s 25th instruction. Assuming that the wire was in a dangerous condition (which the instruction necessarily assumes), the plaintiff’s evidence tends to prove a promise to remedy any defect in it, and this would justify the plaintiff in continuing to use it for a reasonable time in which to repair it, unless the danger of using it was so imminent that a person of ordinary prudence would not have incurred it. Offutt v. World’s Columbian Exposition, 175 Ill., 472, 479. The instruction, both as asked and as modified and given, omits this element. For the same reason, we think the refusal of defendant’s instruction 27 was not error. We think the instruction as modified and given should not have been given; but the modification of which plaintiff’s counsel complain is substantially the same as language contained in plaintiff’s 22nd instruction, and, therefore, plaintiff is not in a position to complain of it. The plaintiff, May 2, 1899, when she was seventeen years and between two and three months of age, executed a release to the defendant. June 17, 1901, when she was nineteen years and four months of age, she, by letter to the defendant, disaffirmed the release. The court refused an instruction asked by defendant, to the effect that plaintiff did’not repudiate the release within a reasonable time after attaining her majority. We are of opinion that the refusal of the instruction was proper. The Supreme Court, in Cole v. Pennoyer, 14 Ill., 158; Blankenship v. Stout, 25 id. 116; Rucker v. Dooley, 49 ib., 377, and Keil v. Healey, 84 ib., 104, have adopted the rule that an infant may avoid a deed of conveyance of land, made during minority, after attaining majority, within the time limited by the Statute of Limitations for bringing on action. We perceive no good reason why this rule should not apply equally to purely personal actions. The limitation in such cases as this is two years. Hurd’s Statutes, 1903, p. 1207, sec. 14. The plaintiff repudiated the release within two years after she attained her majority, after which she brought suit June 20, 1901, also within the two years. We think it unnecessary to consider in this opinion whether the damages are excessive. The judgment will be reversed and the cause remanded. Reversed and remanded.