Bailey v. Pennsylvania Elec. Co.

• Citation: 598 A.2d 41,409 Pa.Super. 374
• Parties: Gordon R. BAILEY and Mary Bailey, His Wife, Appellees, v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation, Appellant. Maurice A. MUTH, Executrix of the Estate of William R. Muth, Jr., Deceased, Appellee, v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation, Appellant.
• Decision Date: 11 October 1991
• Court: Superior Court of Pennsylvania

Page 41

598 A.2d 41

409 Pa.Super. 374

Gordon R. BAILEY and Mary Bailey, His Wife, Appellees, v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation, Appellant.

Maurice A. MUTH, Executrix of the Estate of William R. Muth, Jr., Deceased, Appellee, v. PENNSYLVANIA ELECTRIC COMPANY, a Corporation, Appellant.

Superior Court of Pennsylvania.

Argued June 18, 1991.

Filed Oct. 11, 1991.

Raymond H. Conaway, Pittsburgh, for appellant (at 1608 and 1704).

Edward J. Balzarini, Pittsburgh, for appellees (at 1608 and 1704).

Before POPOVICH, JOHNSON and FORD ELLIOTT, JJ.

POPOVICH, Judge:

Before this Court are consolidated appeals from two orders entered in the Court of Common Pleas of Westmoreland County. The underlying cause of action is negligence. The appellees Gordon R. Bailey and Mary Bailey, his wife, sued the appellant Pennsylvania Electric Company ("Penelec") for personal injuries sustained as a result of a helicopter accident and for loss of consortium, respectively. The appellee Maurice A. Muth, Executrix of the Estate of William R. Muth, Jr., deceased, filed a wrongful death and survival action against Penelec for injuries arising out of the same accident. The factual and procedural history of this case is outlined below. Following review of Penelec's appellate issues, we affirm the trial court's orders.

This litigation arose following a helicopter crash. Gordon Bailey, who was piloting the plane, and William Muth, Jr., Bailey's co-worker, were employees of The Bill Muth Aircraft Co., Inc. and were contractually obligated to perform patrols of Penelec's electrical transmission and subtransmission lines. By means of aerial survey, Bailey and Muth were to observe the lines and report any notable defects to Penelec. See R.297a-301a, 998a-999a. As well, Muth Aircraft was to inspect supporting structures and rights of way. R.998a-999a.

On March 12, 1982, during a scheduled patrol of a Penelec 46Kv line, Bailey's aircraft collided with an intersecting 115Kv line. As a result of the impact, the helicopter plunged to the ground, causing Muth's death. Bailey survived, but he suffered severe, multiple injuries.

Following a two week trial, the jury returned a verdict in favor of the appellees. Bailey was deemed 35% contributorily negligent. Post-trial motions were filed, entertained and denied. Penelec filed a motion with the trial court seeking a supplemental opinion; its request was denied. Final judgment was entered on the record. This appeal ensued.

Penelec raises seven issues for our consideration, as set forth below.

1. Whether the trial court erred in refusing to grant Penelec's motion for judgment n.o.v. where there was no evidence that Penelec had notice of the alleged dangerous condition of the line crossing warning system or the particular 115Kv-46Kv line crossing? In the alternative, whether the court erred in denying Penelec's motion for a new trial based upon its refusal to charge the jury that in order to impose liability on Penelec, Appellees must have produced evidence that Penelec had notice of the alleged dangerous condition?

2. Whether the trial court erred in denying Penelec's motion for judgment n.o.v. where Appellees did not present evidence establishing [a] breach of the duty of care owed? In the alternative, whether the trial court erred in denying Penelec's motion for a new trial based upon its granting of Appellees' Points for Charge Nos. 3 and 4?

3. Whether the trial court erred in denying Penelec's motion for judgment n.o.v. because the evidence established that Penelec owed no duty to warn Appellees of the alleged dangerous condition? In the alternative, whether the trial court erred in denying Penelec's motion for a new trial based upon its refusal to grant Penelec's Points for Charge Nos. 16, 17, 18 and 19?

4. Whether the trial court erred in denying Penelec's motion for a new trial where the evidence established that Appellees' conduct was reckless? In the alternative, whether the trial court erred in denying Penelec's motion for a new trial based upon its refusal to grant Penelec's Points for Charge Nos. 32, 33 and 34?

5. Whether the trial court erred in denying Penelec's motion for judgment n.o.v. where there was no evidence that the existing warning system failed?

6. Whether the trial court erred in denying Penelec's motion for a new trial based on its refusal to grant Penelec's Point for Charge No. 36 which would have informed the jury that the 115Kv line was not required to be marked?

7. Whether the trial court erred in granting Appellees' Petition for Delay Damages Pursuant to Pa.R.Civ.P. 238 for the reason that Rule 238 constitutes an unconstitutional exercise of the Pennsylvania Supreme Court's rulemaking authority and violates Penelec's rights to due process and equal protection as guaranteed by the United States and Pennsylvania Constitutions?

Appellant's brief, at 3.

The record in this case is extensive. We have reviewed the applicable materials in light of the issues raised on appeal. As well, we have considered the relevant law, the parties' comprehensive briefs and the trial court's opinions. Although Penelec asserts that it was entitled to judgment non obstante verdicto or to a new trial, we must conclude that each of Penelec's claims is without merit. The law is established in this Commonwealth as to each of the queries posed by Penelec.

Our standard of review of an order denying judgment n.o.v. is limited: we must determine whether there was sufficient competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft, et. al., 523 Pa. 1, 3-5, 564 A.2d 1244, 1246 (1989). See also Cummings v. Borough of Nazareth, 427 Pa. 14, 25-26, 233 A.2d 874, 881 (1967), appeal after remand 430 Pa. 255, 242 A.2d 460 (1968); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 60-62, 486 A.2d 478, 480 (1984). In so doing, we must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence. We also must reject all unfavorable testimony and inferences. Ingrassia, supra. See also Lira v. Albert Einstein Medical Center, 384 Pa.Super. 503, 507-09, 559 A.2d 550, 552 (1989); Jewell v. Beckstine, 255 Pa.Super. 238, 386 A.2d 597 (1978). Judgment n.o.v. may be granted only in clear cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. Gray v. H.C. Duke & Sons, Inc., 387 Pa.Super. 95, 563 A.2d 1201 (1989); Frank v. Peckich, 257 Pa.Super. 561, 391 A.2d 624 (1978). We note that judgment n.o.v. may not be employed to invade the province of the jury. Thus, where there is a question of fact to be resolved, this is the jury's function. Trawick v. Nationwide Mutual Insurance Co., 242 Pa.Super. 271, 363 A.2d 1265 (1976).

Our standard of review of an order denying a motion for a new trial is whether the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Stevenson v. General Motors Corp. 513 Pa. 411, 426-27, 521 A.2d 413, 420-21 (1987). See Solomon v. Baum, 126 Pa.Commw. 646, 560 A.2d 878 (1989). The trial court's order must be affirmed if there is record support for its decision. See Stevenson, supra.

With these guidelines in mind, we turn to Penelec's substantive arguments. Penelec asserts that judgment n.o.v. should have been directed in its favor because (a) it had no notice of a dangerous condition; (b) it did not have to maintain a high duty of care to the appellees, but rather, only an ordinary duty of care; (c) the appellees' conduct was reckless; and (d) there was no evidence that Penelec's warning system failed. Penelec further contends that the trial court erred in rejecting its proposed jury instruction that the 115Kv line did not require markings. Without repeating the arguments set forth by the litigants, suffice it to say that we have read each brief and reviewed each case cited by the parties. We agree with the appellees and the trial court that Yoffee v. Pennsylvania Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956) controls the disposition of issues (a) and (b), above.

In Yoffee, the pilot of a single engine aircraft was flying over the Susquehanna River when he collided with a transmission line that was strung across the water at a height of 185 feet. In determining that the transmission line was a dangerous instrumentality that could, in the event of contact, cause death to a human being, the Pennsylvania Supreme Court held that the Power and Light Company had a duty to take all practicable precautions necessary to preserve life.

But the power company, of course, owed more than a negative duty to the deceased pilot. That a transmission line is a dangerous instrumentality is recognized everywhere. No matter where located it is a source of grave peril and the law requires that the possessor of such an instrumentality exercise a high degree of care: "Vigilance must always be commensurate with danger. A high degree of danger always calls for a high degree of care. The care to be exercised in a particular case must always be proportionate to the seriousness of the consequences which are reasonably to be anticipated as a result of the conduct in question." MacDougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 396, 166 A. 589, 592 [1933].

Id. at 536, 123 A.2d at 645. The court continued:

Did the defendant measure up to its responsibility in this regard? Was it negligent in the manner in which it erected and maintained its installation at Berry Mountain Gap? We said in Adley Express Co. v. Willard, 372 Pa. 252, 93 A.2d 676, 679 that: " 'The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm * * * resulting from his act' ".

Id. at 536, 123 A.2d at 645-46. Later, the court wrote:

Did the presence of the numerous air bases and the activities of the numerous airplanes in the vicinity of Millersburg constitute a...