{ "id": 5304229, "name": "George A. Turner, Plaintiff-Appellee, v. Commonwealth Edison Company, Defendant-Appellant", "name_abbreviation": "Turner v. Commonwealth Edison Co.", "decision_date": "1976-01-27", "docket_number": "No. 74-372", "first_page": "331", "last_page": "338", "citations": [ { "type": "official", "cite": "35 Ill. App. 3d 331" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "254 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "44 Ill.2d 196", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2889170 ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0196-01" ] }, { "cite": "198 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill.App.2d 321", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5270342 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/47/0321-01" ] }, { "cite": "305 N.E.2d 427", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "430" } ], "opinion_index": 0 }, { "cite": "16 Ill.App.3d 218", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2524659 ], "pin_cites": [ { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0218-01" ] }, { "cite": "134 N.E.2d 277", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill.2d 322", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716574 ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0322-01" ] }, { "cite": "243 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "104 Ill.App.2d 172", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601123 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0172-01" ] }, { "cite": "138 N.E. 203", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1971, "opinion_index": 0 }, { "cite": "306 Ill. 392", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5782855 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill/306/0392-01" ] }, { "cite": "84 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "402 Ill. 486", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2618043 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill/402/0486-01" ] }, { "cite": "227 N.E.2d 781", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "786" }, { "page": "786" } ], "opinion_index": 0 }, { "cite": "83 Ill.App.2d 367", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2691312 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0922-01" ] }, { "cite": "313 N.E.2d 496", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "498" } ], "opinion_index": 0 }, { "cite": "21 Ill.App.3d 46", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5379666 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0046-01" ] }, { "cite": "320 N.E.2d 47", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "60" } ], "opinion_index": 0 }, { "cite": "24 Ill.App.3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5310881 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/24/0001-01" ] }, { "cite": "186 N.E.2d 777", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill.App.2d 199", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5255738 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/38/0199-01" ] }, { "cite": "302 N.E.2d 463", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "14 Ill.App.3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2683046 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0297-01" ] }, { "cite": "305 N.E.2d 584", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill.App.3d 113", "category": "reporters:state", "reporter": "Ill. 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App. 2d", "case_ids": [ 2543495 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0439-01" ] }, { "cite": "218 N.E.2d 21", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill.App.2d 216", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2589138 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/70/0216-01" ] }, { "cite": "234 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill.App.2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2821085 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/91/0001-01" ] }, { "cite": "310 N.E.2d 633", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill.App.3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2612329 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/18/0758-01" ] }, { "cite": "289 N.E.2d 12", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "18" } ], "opinion_index": 0 }, { "cite": "7 Ill.App.3d 888", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2666796 ], "pin_cites": [ { "page": "897" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/7/0888-01" ] }, { "cite": "226 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "641" } ], "opinion_index": 0 }, { "cite": "37 Ill.2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865152 ], "pin_cites": [ { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0273-01" ] }, { "cite": "171 N.E.2d 60", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "67" } ], "opinion_index": 0 }, { "cite": "21 Ill.2d 117", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732590 ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0117-01" ] }, { "cite": "150 N.E.2d 134", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "13 Ill.2d 431", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2773525 ], "opinion_index": 0, "case_paths": [ "/ill-2d/13/0431-01" ] }, { "cite": "328 N.E.2d 329", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill.2d 520", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416298 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0520-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "513-14" } ], "opinion_index": 0 }, { "cite": "37 Ill.2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "weight": 2, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "20 N.E.2d 896", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "299 Ill.App. 542", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5594255 ], "opinion_index": 0, "case_paths": [ "/ill-app/299/0542-01" ] }, { "cite": "240 N.E.2d 358", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "98 Ill.App.2d 380", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2647045 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/98/0380-01" ] }, { "cite": "329 N.E.2d 327", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "29 Ill.App.3d 55", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2498032 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0055-01" ] }, { "cite": "265 N.E.2d 397", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "398" } ], "opinion_index": 0 }, { "cite": "130 Ill.App.2d 872", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2824515 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0872-01" ] } ], "analysis": { "cardinality": 865, "char_count": 17240, "ocr_confidence": 0.741, "pagerank": { "raw": 1.7248920093791594e-07, "percentile": 0.704494354690177 }, "sha256": "b5bfcecfe66a619daee2b3d72ed05d4d5e9ebe5579cdbc3da1c1330adabce70d", "simhash": "1:e3d4345c9d64aced", "word_count": 2816 }, "last_updated": "2023-07-14T15:45:45.042916+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "George A. Turner, Plaintiff-Appellee, v. Commonwealth Edison Company, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by the defendant, Commonwealth Edison Company, from an order of the circuit court of Madison County granting a new trial, brought pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1971, ch. 110A, par. 306).\nThe plaintiff, George A. Turner, brought a two-count complaint against the defendant, Commonwealth Edison Company, in the circuit court of Madison County for damages arising from an injury he allegedly sustained while working on the defendant\u2019s premises. Count I sought damages for personal injuries allegedly caused by defendant\u2019s violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.). Count II sought punitive damages for defendant\u2019s allegedly wilful and wanton misconduct which resulted in the plaintiff\u2019s alleged injury. The cause was tried before a jury. At the close of plaintiff\u2019s case-in-chief the trial court directed a verdict in favor of the defendant on Count II. At the close of all the evidence, the trial court granted plaintiff\u2019s motion that the defendant be found \u201cin charge of\u201d the work as a matter of law and instructed the jury that this issue was no longer in the case for them to consider. The jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $30,000. Judgment was entered on the verdict. Subsequently, plaintiff and defendant each filed post-trial motions. The plaintiff sought a new trial on damages only, or, in the alternative, a new trial on all issues, including punitive damages. The defendant sought a judgment notwithstanding the verdict. The trial court denied the defendant\u2019s post-trial motion, but allowed the plaintiff\u2019s post-trial motion for a new trial on all issues, including punitive damages. The defendant filed a petition for leave to appeal to this court pursuant to Supreme Court Rule 306 (Ill. Rev. Stat. 1971, ch. 110A, par. 306). Leave was granted.\nThe issues before this court may be defined as follows: (1) the propriety of the trial court\u2019s denial of defendant\u2019s post-trial motion for judgment n.o.v.; (2) the propriety of the trial court\u2019s allowance of a new trial on count I, based on the Structural Work Act; and (3) the propriety of the trial court\u2019s allowance of a new trial on count II, punitive damages.\nPrior to review of these issues we feel compelled to reiterate tire following recommendation. The trial judge in the case before us has failed to set forth any reason for granting a new trial. We continue to adhere to the view we expressed in McElroy v. Patton, 130 Ill.App.2d 872, 265 N.E.2d 397, 398, that when a new trial is granted a concise statement of findings or reasons should be incorporated into the record by the trial judge so that the reviewing court may know what prompted his action. Accord, Effler v. Metzger, 29 Ill.App.3d 55, 329 N.E.2d 327; Reese v. Crain, 98 Ill.App.2d 380, 240 N.E.2d 358; Pillow v. Long, 299 Ill.App. 542, 20 N.E.2d 896.\nThe first issue to be resolved is whether the defendant was entitled to a judgment n.o.v. Our Supreme Court expressed the standard to be applied by a trial court in entering a judgment n.o.v. in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. The oft-cited Pedrick rule is that\n\u00ab# o e verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.\u201d (37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.)\nApplying the Pedrick standard to the instant case we find no error in the trial court\u2019s denial of defendant\u2019s post-trial motion for a judgment n.o.v.\nAt the trial in the court below there unfolded ample evidence and testimony from which the jury could readily consider the defendant as \u201chaving charge of\u2019 the work under the Structural Work Act. The plaintiff introduced into evidence the contract entered into between the defendant and the numerous prime contractors, including plaintiffs employer (Morrison Construction Company). This contract gave the defendant the right to stop work immediately if, in the opinion of its engineers, the work was not being done safely. It also gave the defendant the right to reject any work found to be defective or not in compliance with the contract specifications regardless of the stage of completion. This included the right to take down and remove any portion of the work deemed unsound or failing to conform to the contract. The contract further entitled the defendant to require contractors to remove any particular workman or workmen it deemed unfit or unskilled and to remove any equipment defendant considered inadequate or unsafe. In addition to the authority to control vested in the defendant by the contract, the evidence showed that the defendant organized and held safety meetings and coordination committee meetings with the contractors. Reports from the State safety inspectors were distributed to the contractors by the defendant. Finally, several of defendant\u2019s field engineers testified that they, as defendant\u2019s employees, had various means of controlling the manner in which work was conducted by the contractors. The trial court considered this evidence so overwhelming that it directed the jury to find the defendant as \u201chaving charge of\u201d the work. Since we are not asked to review this ruling we simply find that the plaintiff presented sufficient evidence on this issue to make it error for the trial court to grant defendant a judgment n.o.v. Voss v. Kingdon & Naven, Inc., 60 Ill.2d 520, 328 N.E.2d 329.\nWe also find ample evidence from which the jury could find that a violation of the Structural Work Act was the proximate cause of plaintiff\u2019s alleged injuries. The evidence showed that \u201ccherry picker\u201d cranes had been operating on the job site regularly without loads being tied down. Several witnesses, including one of defendant\u2019s field engineers, testified that it was unsafe for a \u201ccherry picker\u201d to cany a load that was not tied down. Evidence also showed that various \u201ccherry pickers\u201d had been \u201cred tagged\u201d by the State for various safety violations. There was also some testimony that the particular \u201ccherry picker\u201d in question had defective brakes and no audible warning system. Although the evidence was conflicting there was credible evidence from which the jury could find that the foregoing factors either individually or collectively caused plaintiff\u2019s alleged injuries and that plaintiff\u2019s alleged injuries were actually sustained.\nWe further find sufficient evidence to permit the jury to find that defendant\u2019s violation of the Structural Work Act was \u201cwilful\u201d within -the meaning of that term under the Structural Work Act. In Kennedy v. Shell Oil Co., 13 Ill.2d 431,150 N.E.2d 134, our Supreme Court, in referring td the term \u201cwilful violation\u201d of the Structural Work Act, reaffirmed its previous interpretation that the word \u201cwilfuUy\u201d is synonymous with \u201cknowingly.\u201d (Accord, Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 171 N.E.2d 60, 67.) Within this context, \u201ca person will be deemed to have known that which he reasonably should have known.\u201d (Miller v. DeWitt, 37 Ill.2d 273, 291, 226 N.E.2d 630, 641.) In other words liability exists under the Structural Work Act \u201cwhere the existence of dangerous conditions could have been ascertained by the exercise of reasonable care.\u201d (Isabelli v. Cowles Chemical Co., 7 Ill.App.3d 888, 897, 289 N.E.2d 12, 18; accord, Mundt v. Ragnar Benson, Inc., 18 Ill.App.3d 758, 310 N.E.2d 633.) The record before us contains evidence that prior to plaintiff\u2019s injury the State inspectors had required that a \u201cwarning device be instaUed\u201d on each \u201ccherry picker,\u201d which would be audible outside the cab of the crane. While this problem was to be remedied by plaintiff\u2019s employer, the defendant had notice of the defect. In fact, the defendant requested each of the contractors to make the necessary corrections and notify the defendant upon their completion. One of defendant\u2019s employees testified he had \u201cseen cherry pickers with loads on them not tied off aU the time\u201d he had \u201cbeen in construction.\u201d Other coworkers of the plaintiff verified that they had seen swinging loads on \u201ccherry pickers\u201d while working on defendant\u2019s premises. The record also shows that two days prior to plaintiff\u2019s injury, the subject of swinging hooks on \u201ccherry pickers\u201d,.was .discussed at a safety meeting attended and conducted by employees of the defendant. This practice was condemned and noted as dangerous, to personnel. There was also testimony that the particular crane in question had defective brakes and had been \u201cred tagged\u201d by the State as unsafe prior to the accident. According to some witnesses it was still in poor condition at the time of the accident. While no reference was made to this particular \"cherry picker,\u201d one of defendant\u2019s field engineers \u201cbelieved\u201d that, certain cranes and \u201ccherry pickers\u201d had been \u201cred tagged\u201d by the State prior to plaintiff\u2019s injury. There was also testimony from plaintiff\u2019s coworkers, and from defendant\u2019s employees, that defendant\u2019s field engineers and other personnel were regularly on the premises. From the reasonable inferences which may be drawn from the foregoing evidence the jury could find, and obviously did find, that the defendant knew, or should have known, about the improper manner in which \u201ccherry pickers\u201d were operated on its premises and the dangerously defective condition of certain \u201ccherry pickers.\u201d\nIn summary, our review of the record shows ample evidence to make a prima, facie case on the issue of: (1) the defendant having \"charge of\u201d the work, (2) a violation of the Structural Work Act as the proximate cause of plaintiff\u2019s injuries, and (3) the defendant\u2019s wilfulness, i.e., knowledge of such violations. Under such circumstances a judgment n.o.v. in favor of the defendant was unwarranted and the defendant\u2019s motion for such was properly refused by the trial court.\nThe next issue for review is whether the trial court erred in granting plaintiff\u2019s post-trial motion for a new trial on count I of his complaint, which he brought under the Structural Work Act. Defendant, in his petition for leave to appeal, contends that the trial court erred in granting this portion of plaintiff\u2019s post-trial motion.\nNotwithstanding the deference which should be accorded a jury\u2019s determination of the factual issues, particularly its award of damages (see Mount v. McClellan, 91 Ill.App.2d 1, 234 N.E.2d 329), where, as in the instant case, the record in the trial court is replete with examples of defense counsel\u2019s continued and concerted effort to bring before the jury improper matters, which could have prejudiced the jury against a material witness testifying on behalf of the plaintiff, a court of review will not reconsider the trial court\u2019s decision to grant a new trial. A trial judge has the duty to weigh the evidence and determine if substantial justice has been done. He has the unique opportunity to observe the multiplicity of situations as they arise during the course of the trial. Consequently, he is in a far better position to weigh the effect upon the jury and decide whether or not substantial justice has been done. See Magnani v. Trogi, 70 Ill.App.2d 216, 218 N.E.2d 21.\nWhile we agree with defendant that some error must appear in the record as the purpose for granting a new trial (Effler v. Metzger, 29 Ill.App.3d 55, 329 N.E.2d 327; Dobson v. Rosencranz, 81 Ill.App.2d 439, 226 N.E.2d 296), it must be remembered\n\u201c9 9 9 that the trial court, in reaching a determination to award a new trial, is vested with discretion, and absent a clear abuse thereof, its decision should not be disturbed on appeal. (Department of Public Works and Buildings v. Russell, 28 Ill.2d 491; In re Estate of Velie, 318 Ill.App. 550.\u201d (Klatt v. Commonwealth Edison Co., 33 Ill.2d 481, 494-95; 211 N.E.2d 720, 727.)\nAccord, Yocco v. Barris, 16 Ill.App.3d 113, 305 N.E.2d 584; Gainer v. Bates, 14 Ill.App.3d 297, 302 N.E.2d 463.\nThus, having not found the record before us free from all potentially prejudicial error and being unable to say that the trial judge\u2019s decision to grant plaintiff a new trial manifested a clear abuse of discretion, we affirm his decision to grant plaintiff a new trial on count I of plaintiff\u2019s complaint.\nThe final issue before this court is whether the trial court erred in granting plaintiff a new trial on count II of his complaint which prayed for punitive damages. As noted earlier in this opinion, the trial court directed a verdict in favor of defendant on this issue at the close of plaintiff\u2019s case-in-chief. At issue here is whether the plaintiff presented any credible evidence from which the jury, if given the opportunity, could have concluded that defendant\u2019s action, or omissions, were \u201cwilful and wanton.\u201d We believe he did not.\nIn order to constitute \u201cwilful and wanton\u201d misconduct, the act or omission must be not only negligent, but exhibit a conscious disregard for the safety of others. (See Yelinich v. Capalongo, 38 Ill.App.2d 199, 186 N.E.2d 777. See also Restatement (Second) of Torts \u00a7 500, and comment g thereunder (1965).) In fact, under the Illinois Pattern Jury Instructions, Civil, No. 14.01 (1971), the jury is instructed that:\n\u2018When I [the trial court] use[s] the expression wilful and wanton conduct\u2019 I [it] mean[s] a course of action which * * * shows an utter indifference to or conscious disregard for * * * the safety of others.\u201d\nThis instruction has been followed uniformly by the cases concerned with this issue. (For recent cases citing this instruction, see Murphy v. Jewel Companies, Inc., 24 Ill.App.3d 1, 320 N.E.2d 47, 60; Mattyasovszky v. West Towns Bus Co., 21 Ill.App.3d 46, 313 N.E.2d 496, 498; Milton v. Britton, 19 Ill.App.3d 922, 312 N.E.2d 303, 309.) Our Supreme Court had an opportunity to review this instruction in Delaney v. Badame, 49 Ill.2d 168, 274 N.E.2d 353. It chose instead to consider such issue waived due to plaintiff\u2019s failure to object at the conference on instructions.\nIn tire words of the court in Rowe v. Frazer, 83 Ill.App.2d 367, 377, 227 N.E.2d 781, 786,\n\u201cA wanton act involves a conscious indifference to a known danger. It is based on a concept that under the known or plainly observable circumstances the doing or failing to do something will naturally and probably result in injury to another, and the defendant must have been aware of that situation and ignored it. [Citations.]\u201d\n(Accord, Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435; Jeneary v. Chicago & Interurban Traction Co., 306 Ill. 392, 138 N.E. 203; Glaze v. Owens, 104 Ill.App.2d 172, 243 N.E.2d 13; see Prosser, Law of Torts, ch. 5, \u00a7 34, at 184-186 ( 4th ed. 1971).) While we agree with the plaintiff that the knowledge may be either actual or constructive, there must be a conscious disregard or indifference for the consequences when the known safety of others is involved. (Myers v. Krajefska, 8 Ill.2d 322, 134 N.E.2d 277; Murphy v. Jewel Companies, Inc., 24 Ill.App.3d 1, 320 N.E.2d 47.) As was observed in Ritter v. Ferenczi, 16 Ill.App.3d 218, 223, 305 N.E.2d 427, 430, \u201c Wilful and wanton conduct is carelessness,but carelessness is not wilful and wanton misconduct.\u2019 (Rowe Frazer, 83 Ill.App.2d 367, 378-379, 227 N.E.2d 781, 786.)\u201d '\nIt is clear from the record before us that -there was nothing before the trial court which corroborated the plaintiff\u2019s allegations of wilful -and wanton misconduct. Albeit tire plaintiff proffered evidence from- which the jury could have found that defendant\u2019s - violation of the Structural Work Acts was \u201cwilful,\u201d within the meaning of -that term under the Act, the record is barren of any \u201cconscious disregard\u201d of plaintiff\u2019s safety.'(See Kapha v. Urbaszewshi, 47 Ill.App.2d 321, 198 N.E.2d 569.) In fact, the majority of evidence plaintiff presented to establish that the defendant was \u201cin charge of\u2019 the work went, also, to establish the defendant\u2019s concern over the safety of those on its premises, and the prophylactic measures it employed, e.g., safety meetings and directives, to ensure the safety of such individuals. In view of this evidence and the failure of the plaintiff to proffer any credible evidence to est\u00e1blish the defendant\u2019s \u201cconscious disregard\u201d for plaintiff\u2019s safety we find that the trial court properly granted defendant\u2019s motion for a directed verdict on this issue. (See Hocking v. Rehnquist, 44 Ill.2d 196, 254 N.E.2d 515.) Conversely, we find that the trial court erred in granting the plaintiff\u2019s motion for a new trial on this issue.\nAccordingly, we remand this cause for further proceedings not inconsistent with this opinion.\nAffirmed in part, reversed in part, remanded with directions.\nJONES and CARTER, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Robert W. Wilson, of Burroughs, Simpson & Wilson, of Edwardsville, for appellant.", "C. William Fechtig, of Fechtig & Sutton, of Carmi, and Paul L. Pratt, of Pratt, Kardis, Pierce & Bradford, Ltd., of East Alton, for appellee." ], "corrections": "", "head_matter": "George A. Turner, Plaintiff-Appellee, v. Commonwealth Edison Company, Defendant-Appellant.\nFifth District\nNo. 74-372\nOpinion filed January 27, 1976.\nRobert W. Wilson, of Burroughs, Simpson & Wilson, of Edwardsville, for appellant.\nC. William Fechtig, of Fechtig & Sutton, of Carmi, and Paul L. Pratt, of Pratt, Kardis, Pierce & Bradford, Ltd., of East Alton, for appellee." }, "file_name": "0331-01", "first_page_order": 357, "last_page_order": 364 }