Rank v. Metropolitan Edison Co.

87 A.2d 198, 370 Pa. 107, 55 A.L.R. 2d 119, 1952 Pa. LEXIS 317

• Court: Supreme Court of Pennsylvania
• Decided: April 1, 1952
• Docket: Appeal, 24
• Status: Published

Opinions

Opinion by

Mr. Justice Chidsey,

Lizzie M. Rank, as administratrix of the estate of her deceased husband, brought this action against Metropolitan' Edison Company to recover damages under the Wrongful Death and Survival Acts, alleging that her husband’s death was caused by the defendant’s negligence. This appeal is from the lower court’s decree denying plaintiff’s motion to take off the compulsory nonsuit entered at the trial.

By virtue of a right-of-way agreement defendant in 1931 erected and thereafter maintained a line for the transmission of electricity across one of the fields of a farm in Lebanon County owned at the time of the occurrence with which we are concerned by Alfred E. Twigg and wife. The right-of-way agreement, entered into by the Twigg’s predecessors in title, contained a reservation which permitted cultivation of the ground between 'the company’s poles and underneath its wires “provided that such use shall not interfere with or obstruct the rights” of the company therein granted. The transmission line ran diagonally across the field. From a pole at the corner of the field to the next pole in the middle of the field, a distance of 275 feet, there was a guy wire for anchoring and support fastened to the corner pole between the cross-arms at the top and extending to the other pole to which it was fastened at á point about 8 feet above the ground. The sag in this guy wire between the poles brought it at the lowest point within 5 or 6 feet of the ground. The transmission line carried high tension wires of 13,600 volts and service or distribution wires of 4,600 volts. The former were attached to the upper of two cross-arms at the corner pole and the latter to the lower cross-arm. There was a transformer attached to the pole below the cross-arms mentioned. The guy wire was fastened to this pole at a point between the two cross-arms which were 2 feet apart. There was an insulator on the guy wire about 1 foot from where it was fastened to this corner pole. Both the high tension and distribution wires were uninsulated. There was testimony that this was the general practice in rural transmission lines.

The decedent was a farmer who did farming for others. On August 7, 1947, between 4 and 5 o’clock in the afternoon, the date and hour of the occurrence, he was removing hay from the field where defendant’s transmission line was located. He had farmed the property for a number of years, both for the Twiggs and their predecessor owner. The decedent was operating a Papec harvester and tractor. This equipment would cut hay, but the hay was already cut and lying on the ground, so that it was being used for another of its functions, to gather the hay and blow it through a pipe into a truck at the rear. The decedent’s nephew, Gerald Gettle, then 11 years of age, was in the truck. When the portion of the field where defendant’s transmission line was located was reached by decedent, since the outfit he was operating could not be driven underneath the guy wire, he drove to the pole in the middle of the field, obtained a wrench from the tractor, stood on the running board of the truck and removed the bolt which ran through the pole, after detaching the nut on the other side. The wire fell down somewhat away from the pole. The decedent then took the end of the wire and with the assistance of the boy who grasped it about 15 feet away from him, dragged the wire a distance of 140 feet to the edge of the field. At this point both the decedent and the boy received an electrical shock and both were thrown to the ground. The decedent’s hands and clothing were burned and he died a short time thereafter. The boy was unconscious for a short time and his hands were burned, but he survived and testified as an eye witness on behalf of the plaintiff. The only reasonable inference to lie drawn was that the guy wire when thus dragged or pulled 140 feet had come into contact with wires of the service line running from the second cross-arm.

Plaintiff charged that the defendant was negligent in the construction and maintenance of its line, particularly in having the insulator on the guy wire only a foot away from the pole, thus permitting the guy wire beyond the insulator to come into contact with the live wires. At the trial plaintiff called a professor of electrical engineering and consulting engineer and offerred to prove faulty construction on the part of the defendant, particularly with respect to the location of the insulator on the guy wire. An objection to the qualification of this witness was sustained on the ground that he had had no experience with rural transmission lines of the voltage of electricity here involved.

There was no evidence or suggestion that the guy wire which of itself was sterile of electricity was affixed to the two poles in a manner that would produce danger to those in lawful proximity or liable to come accidentally or otherwise in contact with it. It had remained, as originally affixed to the two poles, without incident. Only if tampered with and removed from its location could it become charged with electricity. It is not necessary to decide whether such possible removal fell within a foreseeable orbit of danger, for, assuming negligence on the part of the defendant, the decedent’s action was a proximate cause of the accident making him clearly guilty of contributory negligence. Since we must so hold, it is unnecessary to pass upon the ruling of the court below with respect to the proffered testimony of plaintiffs expert.

We are in accord with the views expressed in the opinion of the court below: “. . . the defendant had maintained the same power transmission lines through the field in which the decedent was killed, since 1931. The decedent had been farming in this field for a period of five years and upwards. The guy wire was attached in the same manner during this period of time,¹ and the decedent was familiar therewith. The guy Avire was not charged with electricity while it remained in its original position prior to being detached and moved by the decedent for a distance of approximately one hundred and forty feet in the direction at right angles to the transmission line. It was apparent when the decedent and young Gettle moved the guy Avire, as aforesaid, that it came in contact with the transmission line of defendant and thereby became charged with electricity Avhich killed the decedent. The decedent was the sole actor in the operation Avhich led to his death. . . . However, assuming that the defendant was chargeable with negligence, we are of the opinion that the facts and circumstances testified to in this case so clearly showed that the decedent was chargeable with contributory negligence that reasonable persons Avould not fail to agree with that conclusion. We are of the opinion that the decedent not only heedlessly brought himself into a position that the guy wire came in contact with the distribution circuit, but that the manner in which the decedent removed the guy Avire and moved it in a direction in which it was certain to come in contact with the distribution circuit, was foolhardy. Any reasonable person would know that when two wires that were not insulated came into contact, one of which was charged with electricity, that the other was bound to become charged with it.”

In Haertel v. Pennsylvania Light & Power Company, 219 Pa. 640, 69 A. 282, this Court held that “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 ordinai’y 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 contributing cause, and will prevent a recovery.” This statement of the law had been repeatedly approved by this Court.

The case of Everett v. Citizens’ Gas & Electric Company, 228 Pa. 241, 77 A. 460, is analogous to the instant case. There the plaintiff’s wife was killed by an electric current that passed from the defendant’s feed wire to a guy wire and thence to a wire clothes line in her yard on which she was hanging clothes. Her property fronted on a borough street and extended back to an alley. There was an electric light pole on the street near the division line between her property and that of an adjoining owner, and a pole in the alley close to the fence in the rear of her lot. A guy wire extended from the top of the electric light pole in the street along the division line to the pole in the alley where it Avas fastened 7 feet from the ground. The plaintiff some years before the accident fastened one end of a wire clothes line to this pole and the other end of the wire to a grape arbor. The guy wire was afterAvards removed and a new one put in its place. At the time of the accident the clothes line was wrapped around the guy wire and around the pole. Entry of judgment non obstante veredicto by the court below was affirmed in a per curiam opinion which stated: “The only danger in the situation was created by the deceased, or by someone acting for her, in making an unauthorized and manifestly unsafe use of the pole and guy wire.” In unsuccessfully endeavoring to distinguish this case, plaintiff’s learned counsel suggests that the affixation of the clothes line to the pole and guy wire in the Everett case was an act of trespass. Certainly plaintiff’s decedent in the present case was even more of a trespasser when he detached the guy wire and dragged it 140 feet. The right to cultivate under the defendant’s wires was conditioned upon there being no interference with defendant’s transmission line and its adjunctive facilities.

We have carefully considered the cases principally relied upon by the plaintiff and they are all distinguishable. In Fitzgerald v. Edison Electric Illuminating Company, which twice reached this Court on appeal, 200 Pa. 540, 50 A. 161; 207 Pa. 118, 56 A. 350, a defectively insulated wire was involved. The accident happened in an urban area. The defendant company had extended its wire, apparently without permission, across the corner of a house and so close that by rubbing against it the insulating material was partly worn off. Plaintiff’s decedent was engaged in painting the house and was lawfully upon the roof in the exercise of his business. In order to get at the cornice to paint, he propped the wire with a board which slipped loose. He received an electric shock and fell to the ground. Just how he came into contact with the wire did not appear. This Court said: “. . . but though he [the decedent] was bound to know in general the dangerous nature of such wires, and to use proportionate care in interfering with them, he was also entitled to presume, from the general custom, that they were properly insulated, unless the defect in their covering was visible to such examination as he ought to have made.” Thus in this case the wires were insulated and the question was whether the decedent should have discovered the defect in the insulation. He was in close proximity to the wire and could see that it was an insulated wire, whereas the decedent in the instant ease either knew that the transmission wires were uninsulated or heedlessly failed to concern himself as to the fact.

In Sebring v. Bell Telephone Co., 275 Pa. 131, 118 A. 729, for months the defendant had left a dead broken wire hanging from its telephone line and three boys on a rainy dark evening either pushed or pulled the wire into the street so that it came into contact with a trolley wire. They received electric shock which was fatal to two of them. In discussing the question of contributory negligence on the part of the boys, Mr. Justice Walling, speaking for the Court, said: “They came suddenly upon this wire in their path at night; they could not see where it was attached or know that its movement would bring it in contact with a highly charged wire; they were not bound to anticipate defendant had left it in a dangerous condition.”

In Brillhart v. Edison Light & Power Company, 368 Pa. 307, 82 A. 2d 44, the plaintiff’s decedent was electrocuted when a metal pipe which he and a fellow worker were installing in a well pump came in contact with a high tension uninsulated wire of the defendant company carrying 4,600 volts of electricity. Because of a short elbow at the end of the pipe, it was necessary to push the elbow end of the pipe in through one of the windows of the pump house and up and out a trap-door opening in the roof until the lower end of the pipe was in position over the well. The end of the pipe extending above the roof came into contact with the lower of two high tension wires which were negligently maintained too close to the roof of the pump house. There 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 either saw or should have seen the high voltage wires. Furthermore the decedent was engaged 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.

The material facts in this case are undisputed and fully explain the happening. The presumption that a person who has lost his life exercised due care is not applicable where the plaintiff’s own testimony clearly establishes the decedent’s negligence: Weldon, Admrx., v. Pittsburgh Railways Company, 352 Pa. 103, 41 A. 2d 856; Simmonds v. Penn Fruit Company, 354 Pa. 154, 47 A. 2d 231. The instinct of self-preservation upon which the presumption is founded, was conspicuously absent here. The, decedent’s unfortunate death was caused by his own unjustifiable conduct.

Decree affirmed.

1 Plaintiff’s counsel in his brief apparently assumes that the guy wire had sagged after its erection. This is not borne out by the testimony nor charged in plaintiff’s complaint. It may be said that a sag of 2 or 3 feet in the original erection of this half-inch wire would be expected in a span of 275 feet.