Mary Thompson, Administratrix of the Estate of George Edward Clemmer, Deceased v. Pennsylvania Power Company, a Corporation

402 F.2d 88

• Court: Court of Appeals for the Third Circuit
• Decided: November 19, 1968
• Docket: 17155_1
• Status: Published

Opinions

OPINION OF THE COURT

BIGGS, Circuit Judge.

The plaintiff-appellant Thompson appeals from a directed verdict entered in favor of the defendant-appellee Pennsylvania Power Company (Power Co.). Mrs. Thompson brought suit in the court below seeking damages under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 and under the Pennsylvania Survival Act, 20 P.S. § 320.601. Jurisdiction of both claims is based on diversity of citizenship and statutory amount, 28 U.S.C. § 1332, and the law of Pennsylvania governs.

The relevant facts follow. On August 21, 1964, the wife of the decedent, George Clemmer, gave birth to twins. Later that afternoon Clemmer visited the Dutch Club in Beaver County, Pennsylvania. After some jubilant drinking Clemmer, his father-in-law and a friend set out to see a beaver dam located about a mile from the club. On the way to and from the dam Clemmer was “acting like a fool”, according to his father-in-law, leaping and “chinning” himself on the limbs of trees.

The area between the club and the supposed location of the dam¹ was partially cleared and partially wooded. Over this area were strung two electric wires owned and maintained by the Power Company. One of the wires was a neutral wire which carried virtually no voltage but the other wire, live and uninsulated, carried 4800 volts of electricity. It appears that at some time prior to the accident and for a reason not appearing from the record both wires had sagged to within 8 to 10 feet of the ground. When Clemmer passed beneath the wires, he shouted, “Look here!” to his father-in-law, leaped up, grasped one of the wires in each hand and was electrocuted instantly.

It is undisputed that the poles supporting the wires were 276 feet apart, that the live wire had remained energized despite the fact that the last customer serviced by it had ceased to use it in 1950, that the wires were blackened due to exposure, and that the last visual inspection made by the Power Co. had been made during the week of September 26, 1960, nearly four years prior to the .accident.

At the close of the appellant’s case the Power Co. moved for a directed verdict. This was denied. At the close of all the testimony the Power Co. again moved for a directed verdict. The court reserved decision on the motion. After the jury was unable to reach a decision, a directed verdict was entered in favor of the Power Co. on the grounds that Clemmer was contributorily negligent as a matter of law and that there was insufficient evidence from which reasonably the jury could have found the Power Co. guilty of wanton misconduct.² Thompson has appealed.

The appeal is based on two grounds: first, that the evidence presented on the issue of Clemmer’s contributory negligence did not justify a directed verdict. Mrs. Thompson’s second contention is that the trial judge was in error in refusing to charge the jury on the issue of the alleged wanton misconduct of the Power Co. We conclude that judgment was properly entered in favor of the Power Co.

The negligence of the Power Co. in the case at bar is in large part based on the following contentions: the energized line should have been de-energized and the poles supporting the line should have been placed closer together than 276 feet in order to prevent the lines from sagging.³

In light of our disposition of the case at bar we shall assume that the trial judge was correct in concluding that there was sufficient testimony from which the Power Co. could be held to have been negligent. See Daltry v. Media Elec. Light, Heat and Power Co., 208 Pa. 403, 410, 57 A. 833, 836 (1904). In this regard we note that Pennsylvania imposes upon a supplier of electricity the highest degree of care. Skoda v. West Penn Power Co., 411 Pa. 323, 191 A.2d 822 (1963).⁴

We turn to the question of contributory negligence. In Haertel v. Penna. Light & Power Co., 219 Pa. 640, 643, 69 A. 282 (1908), the Supreme Court of Pennsylvania stated: “While electric companies are bound to use the highest degree of care practicable to avoid injury to everyone who may be in lawful proximity to their wires, yet the ordinary person is held to know that danger attends contact with electric wires, and it is his duty to avoid them so far as he may. If one heedlessly brings himself in contact with such a wire, and is injured in consequence, his imprudence must be regarded as a contributory cause, and will prevent a recovery.” At 219 Pa. 642, 69 A. at 282, it was stated: “How he came in contact with the wire is pure speculation, with a strong implication from the circumstances that it was occasioned by his own imprudence.” In the case at bar the Power Co. contends that the decedent came in contact with the deadly wires by reason of his own imprudence. See also Rank v. Metropolitan Edison Co., 370 Pa. 107, 87 A.2d 198, 55 A.L.R.2d 119 (1952). Could the jury have reached the opposite conclusion ? ⁵ We cannot see how. We agree with the court below that decedent Clemmer was contributorily negligent as a matter of law. Rank v. Metropolitan Edison Co., 370 Pa. 107, 87 A.2d 198 (1952); Everett v. Citizens’ Gas & Electric Co., 228 Pa. 241, 77 A. 460 (1910).⁶

Finally, as we have stated, Thompson contends that the court below erred in not charging the jury on the issue of the liability of the Power Co. for wanton misconduct.⁷ Wanton misconduct has been defined by the Pennsylvania Supreme Court to mean “ ‘that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow. It usually is accompanied by a conscious indifference to the consequences * * *.’ Prosser, Torts § 33 at 151 (2d ed. 1955).” Evans v. Philadelphia Trans. Co., 418 Pa. 567, 574, 212 A.2d 440, 443 (1965). See also. Goss v. Baltimore & Ohio R.R. Co., 355 F.2d 649 (3 Cir. 1966) ; Moss v. Reading Co., 418 Pa. 598, 212 A.2d 226 (1965); Kasanovich v. George, 348 Pa. 199, 34 A.2d 523 (1943).

We think, taking the evidence in the light most favorable to Thompson, that there was insufficient evidence to justify a charge to the jury on wanton misconduct. If there is to be any substance to a distinction between negligent conduct in breach of the highest duty of care and wanton misconduct as it relates to the activity of a utility company, the latter standard must require conduct which exceeds negligence in its reckless nature. Evans v. Philadelphia Trans. Co., supra. Kasanovich v. George, supra. We conclude that such a showing has not been made in the case at bar. See Weir v. Haverford Electric Co., 221 Pa. 611, 616-617, 70 A. 874, 876 (1908). A holding to the contrary would ignore the distinction, created by the courts of Pennsylvania, between negligence and wanton misconduct and effectively eliminate the defense of contributory negligence when asserted by a utility company. Whatever may be the merit of requiring such companies to be insurers of the safety of those who come into contact, either accidentally or intentionally, with electrical facilities, it is not the law of Pennsylvania. See Skoda v. West Penn Power Co., supra, 411 Pa. at 328, 191 A.2d at 825. We have been unable to find any Pennsylvania decision that supports Thompson’s contention that a charge on wanton misconduct would be appropriate under the circumstances at bar. In fact, such a charge would be inappropriate.

Other issues raised by the appellant do not require discussion.

Accordingly, the judgment will be affirmed.

1 . The dam actually had been washed out before the occurrence of the accident.

2 . In Pennsylvania one who is guilty of contributory negligence, however slight, is barred from recovery against a negligent defendant, unless the defendant’s negligence constitutes wanton misconduct. Kasanovich v. George, 348 Pa. 199, 34 A. 2d 523 (1943).

3 . Although it appears that the wires were not insulated, this condition was not alleged to be a negligent one and no evidence was presented to prove it to be such. See Jowett v. Pennsylvania Power Company, 383 Pa. 330, 118 A.2d 452 (1955).

4 . Although it is arguable that Clemmer was a trespaser, in the light of our disposition of the case, we shall assume that he was a gratuitous licensee and thus deserving of the highest duty of care on the part of the Power Company. Markovich v. Jefferson Coal & Coke Corp., 146 Pa. Super. 108, 110-112, 22 A.2d 65, 66-67 (1941); Daltry v. Media Elec. Light, Heat & Power Co., supra.

5 . The only evidence we find in the record which could credibly tend to support such a position is that the sagging wire was blackened due to exposure and consequently arguably lulled Clemmer into believing the wires to be safe, either because they appeared to be insulated or because their condition would not register the appropriate warning signal to Clemmer’s mind. We think this evidence to be insufficient to avoid a finding of contributory negligence as a matter of law. See Haertel v. Penna. Light & Power Co., supra.

Although we recognize that in reviewing the record the testimony must be accorded the view most favorable to Thompson, we do not believe that the evidence alleged to have disarmed Clemmer into believing the wires safe can be viewed apart from the other testimony by Thompson’s own witnesses regarding the appearance of the wires.

Southall, decedent’s father-in-law, in describing the accident stated that one “couldn’t help seeing” the low hanging wires. Transcript, p. 93.

Ira Bummell, who hunted and fished in the neighborhood, testified on redirect examination that “any wire can be a dangerous wire” “if you are using a metal flyrod” and on recross-examination he characterized jumping up and touching the wires in question as “crazy” and something he would not have done. Transcript, pp. 87-88.

6 . Thompson relies on the decision in Brillhart v. Edison Light & Power Co., 368 Pa. 307, 82 A.2d 44 (1951) to support her position that contributory negligence was a question for the jury in the circumstances at bar. The following was said of Brillhart v. Edison Light and Power Co., supra: “[In Brillhart] [t]here was testimony that these wires because of shrubbery and trees were not visible where the men were working and there was ‘not a shred of evidence’ that the decedent * * * should have seen the high voltage wires. Furthermore the decedent was engaged [in Brillhart] in the only method of carrying out the installation of the pump and he did not, like the decedent in the instant case, voluntarily interfere with or trespass upon the defendant’s facilities.” Rank v. Metropolitan Edison Co., 370 Pa. at 115, 87 A. 2d at 202.

7 . Because of our disposition of this contention we need not consider nor decide whether Thompson’s failure to allege wanton misconduct should be a bar to her raising it in a request for a charge to the jury and on this appeal. However, see Rafferty v. DiJohn, 9 Pa.Dist. & Co.R. 2d 415, 417 (1956), affirmed per curiam 390 Pa. 123, 135 A.2d 375 (1957).