Super v. West Penn Power Co.

140 A.2d 20, 392 Pa. 159, 1958 Pa. LEXIS 432

• Court: Supreme Court of Pennsylvania
• Decided: March 24, 1958
• Docket: Appeals, 203, 204, 205, 215, 216
• Status: Published

Opinions

Opinion by

Mb. Justice Benjamin R. Jones,

After a verdict in favor of both defendants in this trespass action, the court below granted a new trial as to one defendant and refused a new trial and entered judgment upon the verdict in favor of the other defendant. From this order and judgment these appeals were taken.

George L. Super, whose death gave rise to this litigation, was employed by Armstrong County Lines Construction Company (herein called Construction Company) as a lineman. In May 1951 the Construction Company was engaged in the construction of a new telephone line for the Murrysville Telephone Company (herein called Telephone Company) along a public highway known as the Murrysville-Sardis highway in Westmoreland County.

The particular area of that construction pertinent to this litigation was a section approximately three-quarters of a mile in length running along the Murrys-ville-Sardis highway in a northerly direction beginning at a point where that highway is intersected by another public highway known as the Mamont road. At this intersection was a telephone pole owned by the Peoples Natural Gas Company (herein called Gas Company) known as Pole 1/103 which was also used by the West Penn Power Company (herein called Power Company) for carrying its power lines. From this pole the newly constructed telephone line, placed on poles of the Telephone Company, ran in a northerly direction along the easterly side of the Murrysville-Sardis highway; the line then crossed to the westerly side of the aforesaid highway. The telephone line then continued in a northerly direction to a Power Company pole known as Pole 1/117 where the telephone wires were wrapped around a cross-arm attached to that pole. On the westerly side of the highway the new telephone line was installed both on five (5) Power Company poles as well as on four (4) new poles installed for the Telephone Company by the Construction Company. On the westerly side of the highway the high tension wires of the Power Company were installed on its poles above the telephone wires.

By May 9, 1951 both wires and poles had been strung and erected. On that date the decedent had started to climb Pole 1/103 — the Gas Company pole— to assist another workman when he was electrocuted by reason of the fact that a high tension wire of the Power Company had dropped on a telephone wire at the Power Company’s Pole 1/117, transmitting a bolt of electricity down the line to the pole upon which decedent was climbing.

The decedent’s father, on behalf of decedent’s estate and as surviving parent, instituted a trespass action against the Power Company and the Telephone Company to recover damages arising from tbe decedent’s death. At the first trial of this action the jury awarded plaintiff a verdict against both defendants in the amount of $20,000. A new trial was granted on the ground that the verdict had not been apportioned between the wrongful death and the survival actions. At the second trial of this action the jury returned a verdict in favor of both defendants. The court granted a new trial as to the Power Company and refused a new trial and entered judgment on the verdict in favor of the Telephone Company. We will consider the action of the court in both respects.

The sole basis for the grant of a new trial as to the Power Company was stated by the court below: “Therefore, it was necessary that the Court instruct the jury as to the duty of the Power Company as to licensees, as well as to its duty to decedent while he was lawfully on the pole of the Peoples Natural Cas Company. In this there was prejudicial error, which requires the granting of a new trial as to the Power Company.”

An examination of the charge indicates that the court pointed out to the jury that decedent “was at the time upon a pole owned by a third company . . adequately explained the duty of the Power Company to exercise the highest degree of care “to avoid injury to anyone who may lav/fully [be] in proximity of its wires and who may come into contact with them accidentally or otherwise” and that “if the pole as maintained by the [Power Company] was safe in its position and its fittings and lines, . . . the fact that some other persons did some act which impaired the safety of that pole or its functioning, then the [Power Company] breached no duty to the plaintiff”. The court then charged: “The defendants say that they gave no consent to the placing of these wires on their poles, and there is no testimony that their consent was given. If such were the case — and there is no denial — then if these wires were placed upon that particular pole, the person who placed them there or directed them to he placed there would be trespassing upon property. A power company is not obliged to protect and guard its poles in a transmission line against trespassers. If they keep their lines and facilities in proper condition according to the highest standard of care, and a trespasser disturbs that property, they would not be liable unless they had known or had reason to believe that trespassers had impaired the safety of their poles and facilities and had failed to do some act to correct it. But they were not bound to anticipate that a trespasser would do any act with respect to that pole, nor were they obliged to inspect it from time to time to see whether any trespasser had impaired the safety of the pole and its equipment. Their duty would only arise when they had knowledge that a trespasser had done some act which affected the safety of the pole and had failed to do some act to correct it.

“That is the point which you will have to determine when you come to deliberate upon the liability of the West Penn Power Company, if any.”

For a more complete understanding of this charge a brief review of the factual background as presented of record is necessary. In connection with the construction of the telephone line on the westerly side of the highway, the Construction Company utilized two sets of poles: five (5) poles of the Power Company which were already in place and use and four (4) poles which the Construction Company placed in between the Power Company’s poles. The construction work required that not only wires but cross-arms be placed on the Power Company’s poles. There was no testimony whatsoever that prior to the happening of the accident the Telephone Company or the Construction Company ever secured permission from the Power Company to place either cross-arms or wires on its poles or that the Power Company knew that such cross-arms and wires had been placed on its poles. The court below considered such testimony unnecessary for several reasons: in the first place the decedent was killed while on the property of the Gas, not the Power, Company; in the second place, the jury could have found that the Power Company had impliedly permitted the use of its poles by the Telephone Company and Construction Company since there was testimony that “for at least two weeks before the accident, [the Construction Company’s crew], had been installing poles, placing cross-arms on the Power Company’s poles and stringing wires thereon, and, in the absence of any evidence of objection by the Power Company to such use or that the Telephone Company lacked authority for such use, the Construction Company working on or about the Power Company’s poles would have been licensees, rather than trespassers.” In this respect the court below erred.

The relevancy oE decedent’s status as a trespasser or a licensee when he met his death would depend on whether he was on the Power Company’s property at that time; only if he were upon its property did it become pertinent to determine whether he was there as a trespasser or a licensee for on his status would depend not only the question of his contributory negligence but also the extent of the Power Company’s duty to him. The record, however, clearly and unequivocally indicates that decedent, when he met his death, was not on the Power Company’s property. The trial judge in his instructions not only told the jury that at the time of the accident decedent “was . . . upon a pole owned by a third company” but refused to instruct the jury that decedent might be considered a trespasser. Such actions were proper. If the trial judge bad permitted tbe jury to determine whether decedent was a trespasser or licensee such an instruction would have been erroneous because decedent was not upon the property of the Power Company when the accident occurred.

Whether the Telephone Company and/or the Construction Company had secured permission from the Power Company to attach wires and cross-arms to the latter’s poles was of vital importance in determining the negligence of the Power Company. A critical issue in determining the Power Company’s liability was whether it “had knowledge that a trespasser [the Telephone Company and/or the Construction Company] had done some act which affected the safety of the pole (Pole 1/117) and had failed to do some act to correct it.” In the absence of any evidence that the Power Company granted permission for the use of its poles or knew of such use, the instruction now suggested that the jury determine whether the use of such poles was by one in the status of a licensee is without any basis of fact in the record.

Plaintiff had the burden of proving either that the Power Company knew or that it should have known of the placement of wires and cross-arms on its poles by the Construction and Telephone Companies. A review of the record indicates that there is no proof in this respect. The fact that the work had progressed over a two week period without objection from the Power Company does not, in the absence of any proof that the Power Company either knew or should have known of such work, supply the element of permission by implication. The record shows simply that the Construction Company, acting at the direction of the Telephone Company, strung wires and cross-arms on the Power Company poles without any permission, express or implied, and the testimony falls far short of proof that either company occupied as to the Power Company the position of a licensee. The trial judge under the circumstances did not err in failing to charge on the question of negligence that the jury might consider the work of stringing the wires and cross-arms the work of a licensee. The reason assigned for the grant of a new trial is without merit and the charge of the court adequately and amply presented to the jury the questions for their determination appropriate to the facts as presented.

The basis upon which the court refused a new trial and entered judgment on the verdict in favor of the Telephone Company was: “The testimony clearly indicates that the relation between the Telephone Company and Sedwick [an individual trading as the Construction Company] was that of employer-independent contractor and the verdict of the jury in favor of the Telephone Company must, therefore, be sustained”. The court below very properly stated: “In plaintiff’s case against the Telephone Company, plaintiff produced no evidence to show that Sedwick was the agent or employee of the Telephone Company. The chief witness for the plaintiff, Leo Kern, testified that he had worked as a foreman for Sedwick since 1946 and that he was the foreman of the crew of which Super was a member; that the work was done according to plans furnished by the Telephone Company and that all the materials were likewise furnished by said defendant; that he and all of the crew were employees of Sedwick; that the Telephone Company did not have any men at work on this job and that the only action which the Telephone Company took with respect to the work was that its representative would visit the job and, if any changes were to be made in. the plans and specifications, he pointed them out to Kern. When asked as to whether said representative interfered with the performance of the work, Ms answer was in the negative. The court nevertheless submitted the question to the jury as to whether the defendant had the right to supervise and direct the method and means of doing the work.” The court reached the conclusion that the relationship between the Telephone Company and Construction Company was that of independent contractee-contractor. A review of the record fully supports this finding. Cf: Townsend v. Pittsburgh, 383 Pa. 453, 457, 119 A. 2d 282; Murrin v. Rifugiato, 373 Pa. 561, 563, 564, 96 A. 2d 865; Pennsylvania Railroad Company v. Allegheny County, 324 Pa. 216, 218, 219, 188 A. 178.

In considering an appeal from the grant or refusal of a new trial we review the record only to determine whether the court below committed a clear error of law or palpable abuse of its discretion: Kuhns v. Brugger, 390 Pa. 331, 335, 336, 135 A. 2d 395; Hartigan v. Clark, 389 Pa. 283, 287, 133 A. 2d 181; Wilbert v. Pittsburgh Consolidated Coal Co., 385 Pa. 149, 156, 157, 122 A. 2d 406; Mozino v. Canuso, 384 Pa. 220, 223, 120 A. 2d 300. In its order granting a new trial the court below clearly committed an error of law in holding that the trial judge erred in not charging the jury that it might consider that the Construction Company occupied the status of a licensee. Under the evidence presented such a charge would have been totally unjustified and erroneous. Conversely, the court below committed no error of law in refusing a new trial and entering a verdict in favor of the Telephone Company because the evidence clearly established that the relationship between that Company and the Construction Company was one of employer-independent contractor.

A careful review of the record indicates that this case was submitted to the jury under proper and adequate instructions from the trial judge and that the verdict of the jury should stand.

The order of tbe court below granting a new trial as to tbe West Penn Power Company is reversed and judgment is directed to be entered on the verdict in favor of tbe West Penn Power Company. Tbe judgment entered on tbe verdict in favor of tbe Murrysville Telephone Company is affirmed.