*1 the earliest convenient opportunity, and make findings, such thereon, and judgment conclusions days later than 90 from the date upon which the this following opinion mandate in this issued case. stated, therefore,
For the reasons order the trial court in this cause is and this vacated cause is remanded with directions to the trial findings court such to make of fact are warranted by the evidence court, the trial court which was held before to draw conclusions opinions consistent with the heretofore rendered in this cause appellate court, and to enter appropriate such as is not prior inconsistent with this and the decisions of this cause.
Reversed and remanded directions. BARRY, JJ.,
STENGEL and concur. STAMBAUGH, RICHARD Plaintiff-Appellant, L. v. CENTRAL ILLINOIS al., Defendants-Appellees. LIGHT COMPANY et Third District No. 75-229 Opinion filed October *2 BARRY, dissenting. J., Peoria, appellant. Kelly, R.
William for O’Hern, Frederick, & Sudow, & O’Hem Kavanagh, Scully, White White, Wombacher, counsel), appellees. (Eugene for both of Peoria the court: Mr. STENGEL delivered JUSTICE five defendants damages by action for This visiting a friend who plaintiff was personal injuries sustained while defendants, Light Illinois Two Central park. at a mobile home resided Road, Inc., plaintiff’s dismissed were Farmington Company remaining three granted favor of the Summary judgment motion. park operators defendants who were mobile home injured, and plaintiff appeals. relevant complaint amended portion second appeal alleged that operators defendants and lessorsof mobile park home and had On leased lot William Hetzel. June plaintiff went assisting to Hetzel’s purpose mobile home for the Hetzel in relocating atop a CB radio antenna tower. After had climbed part way up tower, to the upper portion of the antenna came proximity to an power 13,000 uninsulated electric carrying line volts ran across the rear of Hetzel’s lot. The current arced from the power line antenna and ground, knocked causing injury. serious Plaintiff alleged that negligent allowing defendants were the trailer lines, to be placed failing keep near the reasonably failing safe and danger. to warn Plaintiff also alleged that dangerous defendants had notice of the condition because 1961, a resident of park was killed when arced from a power line to a television erecting. antenna the resident Inc., Park, answer,
Defendant DeLuxe Mobile Home in its new matter that the lines and transformer were visible. This new matter was plaintiff. Subsequently not denied DeLuxe Butler, submitted the affidavit of Edward the custodian for the mobile park, home and 13 photographs of the showing area Hetzel’s lot tower, antenna, power affidavit, lines and transformer. In the Butler stated that top the tower on placed which the antenna was to be is 35 *3 feet high, that the photographs correctly portray area adjacent the to home, that, Hetzel’s mobile as photographs, shown the there are no transformer, obstructions the power view of the lines and that and the injury clear, 2 p.m. day occurred between 1:45 a bright and on excellent visibility. presented
Also trial excerpts the court were from deposition, in which plaintiff stated that he had been at Hetzel’s mobile eight previous home on or nine had build his helped occasions and Hetzel porch, front had power but never the lines On noticed or transformer. the date was injured, he climbed the with his back the rear up tower him, the so that lot the wires were behind and him Hetzel handed the antenna, plaintiff eight estimated to be feet width. Plaintiffstated wires, that no one warned him about the and he did not see the wires or transformer. summary granted,
After judgment DeLuxe’s motion for the other granted summary two defendants were judgment. likewise The pleadings, before us is whether issue affidavits and depositions that is fact genuine show there no issue as to a material and that defendant as right is entitled to a matter of law. The of the party moving summary judgment must free from doubt and even evidence, there is dispute may no if different conclusions evidence, reasonably jury be drawn province from is Silberstein v. reasonable. draw to them most the conclusion which seems Bowl, 1970), Ill. (3d Inc. Dist. Country Peoria Town & N.E.2d to Hetzel’s undisputed show who had been plaintiff, Here the facts that occasions, and previous on nine climbed a 35-foottower received eight or raising came into an antenna electrical shock when an not Plaintiffwas aware of proximity close to an uninsulated electric wire. transformer, the date of his power and the wires on lines or did not see were not undisputed facts also that these wires injury. The show obstructed and were visible. lessors of appeal first that to this are owners and
We note defendants In Genaust v. park guest mobile home Hetzel. who plaintiff, Illinois Power Co. 62Ill. 2d N.E.2d erect on electrocuted contracted to an antenna defendant’s land was when lines proximity power the antenna in close to uninsulated came brought against utility company suit defendant landowner. that portion here, supreme relevant discussed the our court duty possessor of land to business invitees and held failed to state cause of action defendant landowner. noted that defendant discovered the of electrical would have arcing power on its nor under its from lines which neither control, invitee, as a business would be deemed lines. The knowledge dangers erecting an antenna near court also stated:
“Furthermore, VI fails to that the allege we note Count As question were either hidden or concealed. common knowledge so it is also dangerous, common dangerous. carrying electricity line or wire proximity potential installing equipment risk metal apparent.” lines is Torts, (Second) correctly The Restatement section states liability possessors of land to invitees. regarding settled Foods, 552, 557, 328 538.) (Fancil Q.S.E. Inc. 60 Ill. 2d extends, most, Any to latent which defendants have to defendants know create concealed conditions or conditions which will risk realize that unreasonable of harm should based, superior appreciate. Liability part, discover or *4 dangerous possessors land have as to knowledge which owners or Here, under defendants’ conditions on the land. lines were not control, granted company. More utility but were on an easement facts nor adduced significantly, plaintiff has neither concealed, has refuted that these were hidden or nor indicate wires shows that the were obstructed defendants’ evidence which 586
from view and plainly were visible. An owner of land is an insurer against occurring accidents the premises liability on and must be predicated upon negligence part on the Beccue v. owner. Rockford 179, (2d 1968), Park Dist. Ill. App. District 94 2d 236 105. N.E.2d
We do not has any negligence part believe that shown these defendants was injury caused from electrical wires commonly visible and which danger. constituted a known however, Assuming is distinguishable that Genaust at least action, a stated cause of looking does not excuse from when he should look and from which is range within vision. 458, Clark v. Quincy Housing Authority (4th 1967), Ill. App. Dist. 86 2d 229 N.E.2d fact,
While contributory negligence is
preeminently
question of
question
can
undisputed facts,
become
of law when from the
all
reasonable minds in
the exercise
fair and earnest
judgment would
compelled to
reach
conclusion
failed to exercise
degree
safety
ordinary
of due
for
required
prudent person.
care
his
of an
Associates,
v.
Knight
(3d
1974),
Bitner Lester B.
&
App.
Inc.
Dist.
16 Ill.
857,
136;
Chevrolet,
v.
(3d
3d
307
Clausen
Fanning
N.E.2d
Ed
Inc.
Dist.
1972),
1053,
8
3d
App.
Ill.
A (2d similar situation in Withey was involved v. Illinois Power Co. 163, 1961), Dist. Ill. 2d N.E.2d 254. There the who months, had resided at a park mobile home for 10 was while injured attempting to brought move television antenna and suit power company and owner of the park, alleging injury that the coming caused the antenna contact uninsulated lines. holding contributorily negligent law, as a matter court stated: say cannot be heard to that he did not that the know
“[Plaintiff] electric A clearly wire there. failure to see what visible not such compatible safety.” conduct with due caution one’s danger energy The court also noted that the electrical a matter persons ordinary common intelligence experience. that plaintiff,
We believe who climbed a an tower raised antenna, for, lines, clearly without or seeing power which were posed visible and which danger, obvious failed to show that he ordinary exercised due care. Plaintiff is bound to exercise reasonable danger injury, person carelessly care foresee and avoid who walks into that the ordinary observance of care would enabled him to contributorily negligent. (Coleman avoid is Illinois R.R. 228; Central Co. Ill. Village 319 N.E.2d Briske v. 976; Burnham 379 Ill. & Crowe Name Plate
587
Here,
(4th
103.)
plaintiff
Ill.
Mfg.
1935),
App.
Co. v. Dammerich
Dist.
279
and, at the
previously
times
been to Hetzel’s mobile home several
We
an antenna.
believe
erecting
time of the
was on a 35-foot tower
injury,
visible
clearly
plaintiff
charged
seeing
must be
with
which was
v.
Withey
Illinois
commonly
danger.
presented
known
163,
254.
(2d
1961),
Ill.
2d
App.
Power Co.
Dist.
N.E.2d
cases
In those
clearly distinguishable.
The
are
by plaintiff
cases cited
and the issue was
plaintiff
danger,
the evidence showed
to be aware of the
Compare
plaintiff
due care.
whether
had nevertheless exercised
Stilfield
App.
25 Ill.
2d
(2d
1960),
v. Iowa-Illinois
Co.
Dist.
Gas & Electric
1969), 114 Ill.
(4th
Co.
Dist.
Witzig
with
v. Illinois Power
App. 2d
The wires dissenting filed herewith dangerous respect give only slight carriers that evidence long fact that has ignore seems to cargo,” character of their energy is a matter recognized been of electrical ordinary intelligence knowledge persons common to all addition, theory its experience. opinion proceeds dissenting how close though it was no evidence of “arcing,” even admits there jurisdictions foreign came to the wire. The reliance on cases from is, course, understandable, Illinois authorities are to since contrary.
The was not excused from where he should By his his range looked what was within of vision. own admission, he The up climbed the tower with his back the wires. electrical wires whch could have been observed obvious hazard by anyone looking and careful. Under the facts and who was case, circumstances the instant do not think the trial court erred we In the absence finding plaintiff contributorily negligent as matter of law. fact, summary judgment proper. of a of material Hessler question (1st 1972), Cole 289 N.E.2d Dist. Ill. summary judgment trial properly
The entered favor County defendant. of the Circuit Court of Peoria will affirmed.
Judgment affirmed.
STOUDER, P. J., concurs. BARRY, Mr. dissenting: JUSTICE complaint alleges injuries suffered serious which are by (proximately, requires), claimed to have been caused as the physical contact electrical which are admitted to have wires visible, but, been according complaint, by dangerous proclivities and secret the high voltage by transmitted these carriers escape through space is alleged antenna held his hand. It dangerous that defendants had actual knowledge the latent and energy potentiality these transmitted uninsulated wires escape by arcing, and that defendants’ derived from their occurrence, prior awareness of a similar unknown to wherein one Donald Boles electrocuted when from these same jumped through space affixing to a television antenna he was very mobile home located in this same park. Finally residential charged that negligent failing defendants were warn *6 peril unaware, latent they which had and he of which was that he all and was at times in the for safety. exercise of due care his own Considering pleadings, these and the denials contained in defendants’ answer, I at dismay confess the conclusion the that majority given in a testimony, discovery deposition, that he not or did look see the wires, visible in aspects overhead when considered its most to favorable all precludes inference that he in care. This reasonable acted due rule that is recovery by barred from his failure to and see look always has peril heretofore been limited to the situations where causative alleged is patent shown to be a plainly one which would have been appreciated by visible and sighted man he simply reasonable plainly looked. But the peril by visible wires not causative are the alleged merely have been menaced here. The wires were the silent carriers of an capacities invisible lethal of which are force the alleged to have been unknown to but known to defendants. At 57 Am. Negligence (1971), given 2d the rule is that §342 “[t]he Jur. duty one; may look and listen is not an it qualified by absolute be Thus, attendant Co., circumstances.” in Locke Red River Lumber Cal. 2d example, P.2d 506 for in plaintiff-customer well-lighted defendant’s store injury tripped sustained when she plainly visible in in defect the concrete floor an aisle. A plaintiff’s favor against proof was affirmed defendant’s contention that the failing showed her contributorily negligent as a matter of to look and see Relying Jurisprudence, defect. on American visible patent dangers court said even of that while and observable one ordinarily required prudence sight his the exercise of reasonable to use hearing safety, with due his failure diligence for the mere to observe visible peril does not since necessarily contributory negligence constitute such may reasonably by proof be accounted other failure circumstances, is a question light and that it as to whether of all fact evidence, apprehend reasonably the failure look accounted for. it further that explained it is Negligence At 57 Am. 2d §342 Jur. it is danger, fail for a contributory negligence
is not
to look out
given notice or
listening
that
would not have
shown
same
at section 333 of the
existing peril.
And
comprehension
charged with
that
cannot be
topic,
volume and
is stated
“[o]ne
danger was so
contributory negligence as a matter
law unless the
added.)
glaring
danger.” (Emphasis
and obvious as to threaten immediate
only
by majority
misplaced.
Reliance
on the Genaust cause is
in that
the facts here is the discussion
discussion
case which relevant to
at 62 Ill.
in respect
negligence
claim
the landowner. And
authority
exactly
that discussion is
for a conclusion
opposite
In that
majority
reached
here.
case
was an
upon
electrical contractor who came
defendant’s
install an antenna. Without coming
overhanging power
into contact with
lines, plaintiff was injured by electrical
energy
arced
antenna. The court said
who looked and
defendant-landowner
wires,
it,
knew the
even
he
reasonably
could
be
held to
have discovered or
danger
the latent
energy
electrical
could
foreseen
lines,
arc from the
therefore,
transmission
had no
to warn of a
reasonably
case,
foreseeable to him. But
here,
contrast
to the facts
was an
chargeable
electrician held
knowledge of
potential
risk. Viewing
undisputed
proof in the case
bar,
in its aspects most favorable to plaintiff, might
reasonably
inferred of him as
alleges by
care,
averments of due
and as it was
said of
Genaust,
defendant-landowner in
that even observance of the
reasonably
would not
him peril
disclosed to
to be avoided.
*7
inAnd
contrast to Genaust
plaintiff
was an electrical contractor
chargeable with knowledge of
peril, plaintiff’s
complaint
alleges
here
that
had actual knowledge of the secret and lethal risk
defendants
a prior
because of
electrocution
on their
under similar facts. The
risk reasonably to be foreseen by them
defined the
obeyed
to be
Robin,
here.
Ray
Inc.,
See
v. Cock
10 Ill.
The Elliott
also
case
referred to
earlier
in Hill v.
decision
Carolina
Co.,
& Light
Power
204 S.C.
In the case at we have no evidence of wire, how evidence as to of how close came no evidence answer, arced, and, according disputed to defendant’s voltage far the It any physical contact occurred. factual issue to whether even wire, construing look or see the simply admitted did not majority, like favorably incident most gulf considerable energy, arc a propensities of electrical unpredictable here, dispute no material factual exists conclusion that a matter of law. barred as *8 parallel even more to those There are cases with facts other In of fact. questions were held to be negligence where the issues of here Co., 702 184 Kan. P.2d Light v. Power & Henderson Kansas
591 whom, of injured on the a friend while another, casually had They to turn a antenna. helping he was television but wire presence the of defendant’s overhead electrical observed The secret and particularly it did attract their attention. plaintiff said electricity volts unknown fact was that the wire carried 33000 of antenna, injuring escaped electrocuting the the two friends to the jury trial the from the plaintiff. The court withdrew case proofs company’s injuries that the on defendant motion plaintiff’scontributory negligence. Supreme caused The Kansas Court law, not, plaintiff was as a matter of holding reversed and remanded guilty contributory negligence, and that the issue be submitted should court, a jury. ordinary person, knowing the has no means of said any particular carrying whether wire is a lethal current or harmless. knowledge doing “Mere the a certain act a full without a plaintiff to preclude of the risk is not sufficient appreciation involved * * 702, 702,339 691, law. Kan. P.2d recovery from as matter 252, Winona, N.W. 577 Hoppe City In 113 Minn. plaintiff’s employee painting-contractor intestate was an of defendant defendant-city Bridge crossing its employed by paint Mississippi River string city power company defendant Wisconsin. allowed the and the these wires were bridge proof electrical wires across showed carry electricity. from 25000to While used or transmit 45000volts of intestate, bridge, painting physical the without contact with wires, by arcing voltage. Defendant-city electrocuted contributorily defendant-power company claimed that decedent was law, negligent aas matter of and raised this issue on from adverse appeal Supreme Court judgments. affirming judgments, the Minnesota 577, 578, 581) that this (113 Minn. N.W. observed “unknown, propensity of powerful, and destructive” generally though concealed and present is well “was known electricians servants,” and that the beyond of the contractor or upon bridge upon city to make owned known standing, whose wires were company which decedent was and the correctly submitted suspended overhead. It was held that issueswere the jury. necessarily be recovery would not supporting For thesis cases if barred as a matter law even after Annot., wire, 34 A.L.R.2d intentionally accidentally, see had touched (1954) and cases cited therein. distinguishable by majority I cited are respectfully suggest cases summary granting trial court’s supportative judgment. proceedings.
I further reverse and remand the cause for would