O'Donnell v. Kavanagh

Mr. Justice Duncan delivered the opinion of the court. It is first insisted by appellants that the declaration does not state a cause of action. There is no averment in this declaration that any one or more of the defendants possessed, owned, used, operated or maintained the particular wire in question by contact with which the appellee was injured. There is no averment that the wire contained any particular defects, or that it was in any way negligently strung, badly insulated, or improperly attached to the poles by the defendants or any of them. There is no averment of actual or constructive notice to the defendants of any defects or dangers connected with this wire. In cases like this it is necessary to aver and prove three elements to make out a cause of action: “(1) The existence of a duty on the part of the defendant to protect the plaintiff from the injury of whiefi he complains; (2) a failure of the defendant to perform that duty; and (3) an injury to the plaintiff resulting from such failure. When these three elements concur they unitedly constitute actionable negligence, and the absence of any one of these elements, either in the declaration or proof, renders the declaration insufficient to sustain a judgment for negligence, even after verdict or the proof to establish a cause of action involving actionable negligence; * * * and it is not sufficient in the declaration to allege that it is the duty of the defendant to do certain things, as that would be but the averment of a conclusion, but the declaration must state facts from which the law will raise the duty.” McAndrews v. C., L. S. & E. Ry. Co., 222 Ill. 232, and cases there cited; Bahr v. National Safe Deposit Co., 234 Ill. 101. The averment that it was “the duty of said defendants not to suffer any wire strung to said telephone poles above said electric wires to fall across said electric wires and sag down, ’ ’ etc., is but the statement of a legal conclusion and the allegation is not traversable. Besides such a conclusion is not warranted from the facts previously averred, that the appellant telephone company owned, maintained and operated lines, poles, posts, wires, etc., for the transmission of messages, and that the other two defendants were engaged in using said lines in transmitting telephone messages. It is not averred that the wire in question was so owned, used or possessed; and for aught that appears in the declaration it may have been put up by a total stranger and trespasser. We cannot make out from the evidence that the wire was in use at all at the time of the accident, nor are we able to say from the evidence whether it was the property of the Kavanaghs and Tysdall as an old and abandoned wire, or whether it was owned by the Kavanagh Telephone Company, on September 9,1907. The evidence does clearly show that the appellant telephone company never did own it at any time, or control it or use it; and gave the Wabash Valley Telephone Company notice to remove it from the Kinloch poles and that they promised, but neglected, to do so. It therefore was in no way liable to the appellee for his injury by said wire. Its structures were all good and safe, and having no control over the iron wire, though on its poles, it was not liable for injury thereby. Chicago Telephone Co. v. Hayes, 121 Ill. App. 313; Holmes v. Union T. & T. Co., 41 N. Y. Sup. 551, affirmed in 139 N. Y. 651. The judgment therefore cannot stand against the Kinloch Long Distance Telephone Company under the evidence in any view of the case, and being erroneous as to one of the appellants it must be held erroneous as to all of them. Field v. French, 80 Ill. App. 78; Morrow v. Langan, 16 Ill. App. 505. The declaration is fatally defective for the want of averments of ultimate facts showing the existence of a duty from the defendants to the plaintiff and the failure of the defendants to perform that duty. The evidence also fails to support the allegations that are made in the declaration as to the use of this particular wire by the appellants at the time of the injury, if it could be construed into such an averment. The case was tried upon the theory that if the said wire had been on the posts of the Kinloch company and had fallen therefrom on to the electric wires and thereby became charged with electricity, and that appellee was burned by it, that then appellants were liable no matter who put it on the poles or who owned,- maintained, controlled or used it, by reason of the fact simply that they owned the telephone line, and the other wires, poles, etc., or used them and had failed to look after this particular wire. The instructions are based upon the same erroneous theory, many of them; and, seemingly for that reason, the evidence fails to show clearly who owned or had control of this wire at the time of the injury, whether any use was being made of it by any one, or if abandoned and worthless and dangerous, whose duty it was to remove it. No advantage can be gained by further discussion of the instructions or of the evidence in the case in its present situation without further insight into the merits of the case. For the errors above indicated the judgment of the lower court is reversed and the cause will be remanded for further proceedings. Reversed and remanded.