{ "id": 3358341, "name": "DONALD V. SPRAGUE et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees", "name_abbreviation": "Sprague v. Commonwealth Edison Co.", "decision_date": "1978-04-18", "docket_number": "No. 76-1724", "first_page": "342", "last_page": "352", "citations": [ { "type": "official", "cite": "59 Ill. App. 3d 342" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "359 N.E.2d 1078", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896394 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0432-01" ] }, { "cite": "339 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2869685 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/33/0953-01" ] }, { "cite": "161 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. 2d 473", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334939 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0473-01" ] }, { "cite": "177 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill. App. 2d 163", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5232821 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/32/0163-01" ] }, { "cite": "202 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. App. 2d 365", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5801678 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/53/0365-01" ] }, { "cite": "373 N.E.2d 1354", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "57 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3419265 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0498-01" ] }, { "cite": "340 N.E.2d 550", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 1059", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2960600 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/1059-01" ] }, { "cite": "344 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill. App. 3d 1064", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2632655 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/36/1064-01" ] }, { "cite": "275 N.E.2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "2 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2755577 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/2/0874-01" ] }, { "cite": "285 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468122 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0516-01" ] }, { "cite": "341 N.E.2d 488", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 331", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5304229 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0331-01" ] }, { "cite": "209 N.E.2d 509", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "61 Ill. App. 2d 273", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5300750 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-2d/61/0273-01" ] }, { "cite": "190 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. App. 2d 112", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2452025 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0112-01" ] }, { "cite": "33 N.E.2d 754", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "310 Ill. App. 251", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3375854 ], "opinion_index": 0, "case_paths": [ "/ill-app/310/0251-01" ] } ], "analysis": { "cardinality": 1123, "char_count": 25284, "ocr_confidence": 0.859, "pagerank": { "raw": 1.4867141102228306e-07, "percentile": 0.6622061749546015 }, "sha256": "ba1b5727f8f53882c39804fe835c53909a9b8464320f025c2d6997beaa445ee4", "simhash": "1:f55e78a50f8d016f", "word_count": 4214 }, "last_updated": "2023-07-14T17:17:36.138296+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DONALD V. SPRAGUE et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court:\nThis appeal arises from an action brought by plaintiffs, Donald and Kathleen Sprague, to recover for severe and permanent injuries sustained by Sprague and allegedly occasioned by the negligent or wilful and wanton conduct of defendants, Commonwealth Edison Company (hereinafter \u201cEdison\u201d) and Gust K. Newberg Construction Company (hereinafter \u201cNewberg\u201d). Plaintiff\u2019s injuries resulted when a mobile crane, owned and operated by. Newberg and for which plaintiff was acting as signalman, contacted an electric power line suspended over the Dresden nuclear power plant located near Joliet, Illinois, and operated by defendant Edison. Upon a jury trial, a general verdict was returned in favor of both defendants and against plaintiff.\nJudgment was entered on the verdict and plaintiff currently appeals contending: (1) that the verdict was contrary to the manifest weight of the evidence; (2) that the trial court erred in permitting the jury to consider the issue of plaintiff\u2019s contributory negligence or contributory wilful and wanton conduct; (3) that certain evidentiary rulings of the trial court were improper and served to deny plaintiff a fair trial; and (4) that defendant Edison\u2019s argument to the jury was improper and prejudicial.\nA review of the evidence reveals that on March 1, 1972, plaintiff was employed as a welder and pipefitter by F. Conry Mechanical Contractors and had been assigned as a work foreman on certain construction then underway at the Dresden power plant. Plaintiff had been employed on the site for approximately 4 years and was aware that power lines were suspended overhead which, if contacted by an electrical conductor, would transmit electric current through such conductor. In fact, double circuits of wire were suspended at heights of 21 feet, 26 feet, 6 inches, and 32 feet, and each wire carried 34,500 volts. Atmospheric conditions on the date in question were variously described as \u201cfoggy,\u201d \u201cmisty,\u201d \u201ccloudy,\u201d and \u201cdamp.\u201d Under optimum conditions the actual height of these wires was difficult to estimate from ground level due to a lack of visual reference points. Accordingly, normal safety procedures to be employed when operating in the vicinity of such wires included allowing a clearance of 10 feet from the wires.\nPlaintiff\u2019s assignment on the date in question had been to transport certain pieces of pipe a distance of approximately 125 feet within the confines of the job site and in the immediate vicinity of the power lines suspended overhead. Plaintiff was assisted in this operation by a fellow employee, Sam Bretto, and a Newberg employee, A1 Barra, who operated a mobile crane or \u201ccherry picker\u201d which was required to move the pipe sections. On February 28, 1972, two days before the accident, plaintiff and Bretto had unloaded the pipe without incident from a truck by using the \u201ccherry picker\u201d which had been operated by a different Newberg employee, Byril Swanson. Plaintiff acted as signalman for Swanson in order to direct the movements of the \u201ccherry picker\u201d and specifically warned Swanson of the power lines.\nThe mobile crane was equipped with a boom 10 feet in length which could be extended, retracted, raised and lowered by means of controls located in the cabin near the operator\u2019s seat. A cable with a hook on its end extended down from the tip of the crane boom and was also operated by a control in the cabin. In order to lift lengthy sections of pipe, the men employed \u201cspreaders\u201d (i.e., two equal length wire cables with a hook on one end and an eye on the other). The hooks on the other end of the cables were either attached to the ends of the pipe or, if the pipe was longer than the \u201cspreaders,\u201d the \u201cspreaders\u201d would be wrapped or \u201cchoked\u201d around the center of the pipe. The \u201ccherry picker\u201d was equipped with a windshield and a roof window which was covered by a wire mesh guard of unknown specifications. The \u201ccherry picker\u201d was capable of being driven forward under its own power and with the boom in an elevated or lowered position. When in the latter configuration, the boom tip would be 10-12 feet above the ground.\nOn the date of the accident, plaintiff again acted as signalman and directed Barra in moving the section of pipe as planned. During the maneuver the boom was positioned at a 45\u00b0 angle. Thereafter, Barra centered the boom and began to lower it to a horizontal position. However, Barra stopped when plaintiff stepped in front of the crane, seized the \u201cspreaders,\u201d looped them over his shoulders and motioned to Barra to move forward. Barra complied and the crane moved forward. Barra testified that he kept his eyes trained on Sprague; that he relied upon Sprague exclusively for directions; that he was unaware of the height of the boom at this time; and, that the boom tip was not visible to him due to the inclement weather conditions. Barra did not exit his cabin so as to estimate the height of the boom in relation to the overhead wires and, since Barra was unfamiliar with the area, placed complete reliance upon plaintiff to direct him. Barra indicated that he knew that plaintiff was an experienced workman who had previously worked on the particular job site.\nThe crane had proceeded forward but a short distance when the boom came into contact with the power line suspended 21 feet above ground level. An explosion followed and electric current was conducted through the crane assembly and into plaintiff\u2019s body, causing him severe injuries and necessitating the amputation of plaintiff\u2019s left arm.\nPhotographs taken at the scene shortly after the accident show the boom entangled in the overhead wires suspended approximately 26 feet above ground level. Plaintiff, who characterized himself as a \u201cpretty good judge of distance,\u201d testified that he observed the crane boom immediately prior to walking forward and estimated that it was approximately 15 feet above the ground. Plaintiff also stated that in his estimation the lowest power line was approximately 25 feet above ground level; that there was \u201cplenty of room\u201d under the lines within which to maneuver the crane; that it was a customary practice for a workman to carry the \u201cspreaders\u201d if a short distance was to be traversed rather than attach them to the body of the crane; and, had the boom remained in the position at which plaintiff observed it the accident would not have occurred. The testimony of Sam Bretto corroborates plaintiff\u2019s estimate of the height of the boom and wires. The several Edison employees who testified at trial also overestimated the height of the power lines.\nPlaintiff further testified that while he was walking he did not feel any \u201cpull\u201d on the \u201cspreaders\u201d as might be experienced if the boom had been raised during this time. At trial, Barra denied that he moved the boom after he received plaintiff\u2019s signal to proceed forward. It was established that the crane cable could be released while the boom was simultaneously being extended and elevated. However, this would require great dexterity on the part of the operator inasmuch as the maneuver would require moving three levers in different directions while steering the crane. Further, it appears that all the controls were powered by the same system in such a way that the boom would always rise faster than the cable could be paid out. If the boom was raised, the hook and \u201cspreader\u201d assembly would always be raised to some extent. According to operator Swanson, it would be \u201cimpossible\u201d to alter the position of the boom either by elevation or extension without changing the position of the hook.\nPlaintiff initially contends that the jury\u2019s verdict was unreasonable, arbitrary and unsupported by the evidence. In support of this position, plaintiff maintains: (1) that the evidence was sufficient to establish negligence or wilful and wanton conduct on the part of each defendant, which conduct proximately caused plaintiff\u2019s injuries; and (2) that, as a matter of law, plaintiff was free of either contributory negligence or wilful and wanton conduct so that the trial court erred in submitting these issues to the jury for its consideration. As we review the case, we can but conclude that it presented factual questions for the jury.\nWilful and wanton conduct is difficult to define with precision. Whether an act constitutes such conduct is greatly dependent upon the particular facts of each case and it is within, the peculiar province of the jury to consider. (Kelly v. Burtner (1941), 310 Ill. App. 251, 33 N.E.2d 754.) A charge of wilful and wanton conduct does not require proof that the party intended that harm should ensue. It is sufficient that the evidence tends to show that the party had notice which would alert a reasonable man that substantial danger was involved and that the party failed to take reasonable precautions under the circumstances. (Hatfield v. Noble (1963), 41 Ill. App. 2d 112,190 N.E.2d 391.) Moreover, one may be guilty of such conduct not only through an error in judgment but also from a failure to exercise judgment. (Dursch v. Fair (1965), 61 Ill. App. 2d 273, 209 N.E.2d 509.) In order to establish wilful and wanton conduct the act or omission must not only be negligent but exhibit an utter indifference to or conscious disregard for a person\u2019s own safety or the safety of others. Turner v. Commonwealth Edison Co. (1976), 35 Ill. App. 3d 331, 341 N.E.2d 488. See also Jarvis v. Herrin City Park Dist. (1972), 6 Ill. App. 3d 516, 285 N.E.2d 564.\nPlaintiff submits that the evidence was sufficient to establish that defendant Edison was guilty of such conduct in that Edison failed to insulate the wires in the vicinity of the job site, failed to inspect the job site, and failed to provide adequate warning with respect to the height of the various wires.\nWhether the defendant power company was negligent for failing to insulate its wires at the location of the accident was a factual question requiring consideration of the particular conditions and circumstances, including whether it was reasonably foreseeable that persons might come into proximity of the wires. (Ploense v. Illinois Power Co. (1971), 2 Ill. App. 3d 874, 275 N.E.2d 920.) Electricity is an inherently dangerous and deadly force which should be regarded with a high degree of care by those engaged in the business of supplying electrical energy. Clinton v. Commonwealth Edison Co. (1976), 36 Ill. App. 3d 1064, 344 N.E.2d 509.\nThe evidence in the instant case, together with all reasonable inferences, tends to show that defendant Edison had actual notice that a substantial danger existed. Evidence was also adduced to establish that an unrelated incident occurred at the site approximately 3 months prior to the date of the accident in question when a dump truck struck a wire adjacent to that involved in the instant case. The evidence also tends to establish that aside from this incident the area had been used under construction conditions for an extended period of time without incident. In any case, whether defendant Edison\u2019s failure to otherwise inspect the job site, insulate those wires in the immediate vicinity of the job site, or employ other specific warning devices evinces a conscious disregard for or utter indifference to the safety of others present questions properly within the domain of the jury as trier of fact. Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 340 N.E.2d 550; Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 373 N.E.2d 1354.\nDefendant Newberg relies upon the proposition that a failure to see what is visible is not such conduct as is compatible with due caution for one\u2019s own safety, and, in the instant case, evidenced a conscious and utter disregard for plaintiff\u2019s own safety. (Hedge v. Midwest Contractors Equipment Co. (1964), 53 Ill. App. 2d 365, 202 N.E.2d 869.) Indeed, in its brief before this court, defendant Newberg does not expressly dispute plaintiff\u2019s contention that Newberg employee, A1 Barra, failed to exercise ordinary care with respect to the operation of the \u201ccherry picker.\u201d It is well-settled that a party has no right to knowingly expose himself to danger and then recover damages for an injury which might have been avoided by the exercise of the requisite care. Withey v. Illinois Power Co. (1961), 32 Ill. App. 2d 163, 177 N.E.2d 254.\nThe complaint in the instant case charged defendant Newberg with both negligence and wilful and wanton conduct. No special interrogatories were submitted to the jury with respect to these issues. A general verdict was returned in favor of both defendants and against plaintiff. The general and long accepted rule of law is that contributory negligence of the plaintiff is a defense for a defendant charged with negligence. The corollary of this rule, which is of more recent origin, is that contributory wilful and wanton conduct of the plaintiff is a defense for a defendant charged with wilful and wanton conduct. Only contributory wilful and wanton conduct is a complete defense to an action regarding the same. Zank v. Chicago, Rock Island & Pacific R.R. Co. (1959), 17 Ill. 2d 473, 161 N.E.2d 848.\nAt the outset it must be noted that this operation undertaken at the Dresden work site on Edison property was extremely hazardous, involving heavy construction in the immediate vicinity of highly energized power lines suspended merely 21 feet above ground. Within this context, it cannot be said, as a matter of law, that defendant Newberg was free of negligence or wilful and wanton conduct with respect to the operation of the \u201ccherry picker.\u201d By agreeing to maneuver his crane while the boom was in an elevated position and without attempting to personally discern the height of the boom in relation to the overhead power lines, Newberg\u2019s employee displayed an obvious lack of care for his own safety and that of others. The jury might have properly found' that such carelessness constituted wilful and wanton conduct attributable to defendant Newberg.\nNor may plaintiff, as a matter of law, avoid all responsibility for the unfortunate height of the boom and the accident which occurred as a result. At trial, plaintiff acknowledged that he bore a duty to be on the alert for obviously hazardous conditions such as energized, low-slung, overhead power lines; that he was aware of this particular danger; and, that he did not warn the operator of the hazard.\nThe testimony of plaintiff and that of his co-worker, Sam Bretto, suggested that the boom was no more than 15 feet above ground level which, if true, would have provided sufficient clearance to avoid the power lines. Their estimates are not beyond question, however, in light of both employee\u2019s failure to accurately gauge the height of the power lines. While plaintiff contends that the boom was raised after he estimated its height, plaintiff admits that he felt no \u201cpull\u201d as might have been experienced had such an elevation taken place as he walked forward in advance of the \u201ccherry picker\u201d carrying the \u201cspreader\u201d assembly over his shoulders. Clearly, the boom should have been reduced to its lowest height and plaintiff\u2019s signal to the crane operator was instrumental in preventing this obvious safety measure from being implemented. The jury might properly have found that such close tolerances were grossly unreasonable and chargeable to plaintiff as signalman for the crane operator.\nMoreover, it should also be noted that plaintiff elected to carry the \u201cspreaders\u201d over his shoulders under power lines which plaintiff assumed would cause electrocution if contacted by a metallic object. Plaintiff also chose this means of performing his task under circumstances where he admitted that the precise height of the wire was difficult to discern and the crane boom, on plaintiff\u2019s direction, was not lowered to its lowest level. Plaintiff testified that he was authorized to attach the \u201cspreaders\u201d to the \u201ccherry picker\u201d during a repositioning of the vehicle. While plaintiff testified that it was an ordinary practice to personally carry the \u201cspreaders\u201d under similar circumstances, operator Byril Swanson testified that in his considerable experience he had never observed a workman carry the \u201cspreaders\u201d for even a short distance. Other expert testimony indicated that it would be the duty of a workman \u201cwalking the spreaders\u201d to take \u201cspecial precaution.\u201d\nPlaintiff evinced a lack of care for his own safety. In light of the obvious and tremendous risk of death or serious personal injury, plaintiff chose an extremely unsafe means of performing his work and may be deemed to have contributed to his injuries in this regard. See Shannon v. Addison Trail High School (1975), 33 Ill. App. 3d 953, 339 N.E.2d 372.\nThe jury was in the best position to assess these competing considerations, evaluate the culpability, if any, of the parties\u2019 conduct, and determine the proximate cause of plaintiff\u2019s injuries. The jury\u2019s verdict is not contrary to the manifest weight of the evidence and shall remain undisturbed by this court. Spankroy v. Alesky (1977), 45 Ill. App. 3d 432, 359 N.E.2d 1078.\nPlaintiff next contends that certain evidentiary rulings by the trial court were improper and served to deny plaintiff a fair trial. Specifically, plaintiff asserts that such error occurred with respect to his attempted impeachment of A1 Barra regarding the height of the boom at the moment the \u201ccherry picker\u201d commenced its journey toward the power lines.\nThere was considerable dispute at trial concerning the height of the boom at various times during its use prior to the accident. The record and the various analyses provided by the parties on this point are equally confused. It appears that on direct examination and during plaintiff\u2019s cross-examination of the witness, Barra estimated that the tip of the boom was approximately 20 feet above ground level at the time he was moving the pipe and at the moment that he centered the boom after putting the pipe down. In a deposition given prior to trial, Barra indicated that he believed \u201cthe boom might have been somewhere in the neighborhood of 15 feet\u201d above the ground at the point in time in which he started to lower the boom. Barra also indicated that he \u201cthought that would be the maximum\u201d but that he \u201cwas not certain.\u201d While it is unclear from the record, these two estimates appear to have concerned two different time periods and, hence, the trial court was correct in ruling that the attempted impeachment was improper.\nIn any case, review of the record establishes that plaintiff\u2019s counsel subsequently questioned Barra as to the height of the boom at the moment Barra received plaintiff\u2019s signal to move forward in the direction of the power lines. Barra repeatedly stated that he could not see the tip of the boom but admitted that the height of the boom \u201ccould have been approximately 15 feet\u201d above the ground at this most relevant time. Plaintiff\u2019s counsel seized upon this admission and argued the obvious inferences to the jury during closing argument. Any error which might have conceivably resulted to plaintiff from the trial court\u2019s ruling must be deemed harmless.\nPlaintiff also argues that defendant Newberg\u2019s attorney was allowed to disparage the credibility of plaintiff\u2019s witness Sam Bretto by improperly attempting to impeach Bretto on a material issue (i.e., visibility on the job site) and subsequently failing to offer proof of any prior inconsistent statement.\nPlaintiff failed to make a timely objection to this procedure and must be deemed to have failed to preserve this issue for appellate review. Indeed, plaintiff did not choose to raise the point prior to an amendment to his post-trial motion filed eleven months after the jury returned its verdict. In any case, the prejudice which plaintiff currently asserts as mandating reversal of the jury\u2019s verdict is not self-evident. The colloquy about which plaintiff complains appears as follows:\n\u201cQ. I believe you said that the weather was damp and slightly drizzling and there was some fog in the distance. Wasn\u2019t the fog right there, where you were working?\nA. No, sir.\nQ. Do you remember, on November 2,1972, a man came to your house in Coal City or late in the afternoon or early evening, and asked you a lot of question about this, and prepared a long-hand report?\nA. No, I don\u2019t.\nQ. Offered it to you to sign? You don\u2019t remember that?\nA. I don\u2019t remember that, sir.\nQ. Do you remember that it happened at all, regardless of whether you remember that it was November 2nd? Do you remember that ever happening?\nA. No, I don\u2019t. No, I don\u2019t.\nQ. You, of course, can write and sign your name, can\u2019t you?\nA. Yes, sir.\nMr. Guy: Would you mark this as Defendants\u2019 Exhibit 4, for identification, please.\n(Document marked as requested.)\nMr. Guy: Q. Let me show you seven pages of writing, at the bottom of each there is a name. Would you look at the bottom of each page and tell me whether that is your signature seven different times?\nA. Yes, it is.\nQ. So you did sign this document, then?\nA. Yes, sir.\nQ. This is the original, I mean, this is not a copy, this isn\u2019t a copy, is it?\nA. No.\nQ. Does the fact that you signed this refresh your recollection as to whether the document was prepared?\nA. No, it doesn\u2019t.\nQ. It doesn\u2019t? You still don\u2019t remember?\nA. I don\u2019t remember, no, sir.\nQ. Do you remember saying that the weather was damp, cloudy and foggy and not windy?\nA. You mean at that particular time?\nQ. Hm-Hm.\nA. No, sir, I don\u2019t.\nQ. You don\u2019t?\nA. I don\u2019t remember anything on it.\nQ. But that is your signature?\nA. Yes, sir.\u201d\nThe witness\u2019 description of the weather in the statement (\u201cdamp, cloudy, and foggy, not windy\u201d) was essentially the same as his trial testimony on direct examination:\n\u201cQ. [Mr. Rafferty] By the way, what kind of weather was it that day, Mr. Bretto?\nA. Damp, very light drizzle and a little fog in the distance.\u201d The statement was later admitted into evidence, without objection, for the limited purpose of establishing that Bretto signed it seven times. Plaintiff\u2019s suggestion that an \u201cinconsistency\u201d developed when defendant\u2019s counsel asked Bretto whether the fog was not \u201cright there where you were working\u201d is not well-taken. At best, this question was simply an attempt to obtain a factual admission. There was no reference to any statement of the witness on this point and defense counsel never intimated that the witness made a contrary statement at a prior time.\nPlaintiff finally contends that the closing argument of defendant Edison was improper and prejudicial. Again, plaintiff failed to make a timely objection to the comments in question and has failed to perfect the issue for appellate review. In any case, plaintiff suffered no prejudice by these comments:\n\u201cHe has got to prove that he was free of contributory negligence or wilful and wanton misconduct, that the defendant was negligent or committed wilful and wanton conduct, that the negligence or wilful and wanton conduct of the defendant proximately caused the accident, and that the plaintiff was injured, but he has got to prove all four, not just one or two or three. Because of his contributory fault, under those instructions, was just part of what caused this accident, then under the law, the defendants are entitled to a verdict.\nNow, that is a hard one to swallow and not all people like that, but I just want you to think of one little problem when you are in the Jury room. I don\u2019t suppose that anyone likes Watergate or likes what the C.I.A. is doing to us. We are not there in the jury room, but if you don\u2019t follow the law, you are doing the same thing to our system of justice that Mr. Nixon did and the C.I.A.\u201d\nTaken in its appropriate context, counsel merely used these current events in order to illustrate and impress upon the jury their sworn duty to follow the law.\nAccordingly, for the aforementioned reasons the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nDOWNING and PERLIN, JJ., concur.\nKathleen Sprague joined suit to recover for a loss of consortium. Hereinafter, all reference to \u201cplaintiff\u201d will connote Donald Sprague.\nA \u201cflagman\u201d is an escort who leads construction machinery from one point to another. A \u201csignalman\u201d works with a \u201ccherry picker\u201d to provide its operator with signals to raise, lower or swing the boom and its load.\nWithin this context, it is necessary to take into consideration other factors in addition to foreseeability in determining defendant\u2019s legal duty, including: the likelihood of injury; the magnitude of the burden of guarding against it; the consequences of placing the burden on defendant as well as public policy and social requirements. Clinton v. Commonwealth Edison Co.", "type": "majority", "author": "Mr. PRESIDING JUSTICE STAMOS" } ], "attorneys": [ "Robert J. Rafferty, of Chicago (Seymour Ogden, of counsel), for appellants.", "Lord, Bissell & Brook, of Chicago (C. Roy Peterson, Richard E. Mueller, and Hugh C. Griffin, of counsel), for appellee Commonwealth Edison Company.", "Schaffenegger, Watson and Peterson, Ltd., of Chicago (Jack L. Watson, of counsel), for appellee Gust K. Newberg." ], "corrections": "", "head_matter": "DONALD V. SPRAGUE et al., Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY et al., Defendants-Appellees.\nFirst District (2nd Division)\nNo. 76-1724\nOpinion filed April 18, 1978.\nRehearing denied May 18, 1978.\nRobert J. Rafferty, of Chicago (Seymour Ogden, of counsel), for appellants.\nLord, Bissell & Brook, of Chicago (C. Roy Peterson, Richard E. Mueller, and Hugh C. Griffin, of counsel), for appellee Commonwealth Edison Company.\nSchaffenegger, Watson and Peterson, Ltd., of Chicago (Jack L. Watson, of counsel), for appellee Gust K. Newberg." }, "file_name": "0342-01", "first_page_order": 364, "last_page_order": 374 }