Fox v. Keystone Telephone Co.

• Decision Date: 17 May 1937
• Docket Number: 97
• Citation: 326 Pa. 420,192 A. 116
• Parties: Fox, Appellant, v. Keystone Telephone Company et al
• Court: Pennsylvania Supreme Court

192 A. 116

326 Pa. 420

Fox, Appellant, v. Keystone Telephone Company et al

No. 97

Supreme Court of Pennsylvania

May 17, 1937

Argued January 28, 1937

Appeal, No. 97, Jan. T., 1937, from order of C.P. No. 4 Phila. Co., Sept. T., 1933, No. 6204, in case of Mildred Fox v. Keystone Telephone Company, and City of Philadelphia and Philadelphia Electric Company, additional defendants. Orders reversed.

Trespass for personal injuries. Before LEWIS, J.

The opinion of the Supreme Court states the facts.

Verdict directed for electric company; verdict rendered by jury in favor of plaintiff and against telephone company, and in favor of defendant city. Judgment entered for defendant telephone company n.o.v.; motions for a new trial dismissed. Plaintiff appealed.

Errors assigned were granting of defendant's motion for judgment n.o.v. and entry of judgment for defendant.

The order of the court below entering judgment non obstante veredicto in favor of the Keystone Telephone Company is reversed; the verdict in favor of the City of Philadelphia and the order directing a verdict in favor of the Philadelphia Electric Company are set aside. The rules for new trial are reinstated.

Grover C. Ladner, of Ladner & Ladner, for appellant.

John J. McDevitt, Jr., and Lewis M. Stevens, with them Joseph M. Leib, for appellee.

Before KEPHART, C.J., SCHAFFER, MAXEY, DREW, LINN, STERN and BARNES, JJ.

OPINION

MR. JUSTICE BARNES:

The plaintiff was the manager of a bakery shop, located near 54th Street on the north side of City Avenue, which extends along the boundary line between the City of Philadelphia and Lower Merion Township, Montgomery County. A pay station telephone of the defendant telephone company was installed in the store where the plaintiff was employed. In her testimony plaintiff described the occurrence on September 28, 1933, which gave rise to this action, as follows: "I picked up the Keystone telephone receiver to call the supervisor and there was a loud explosion came through the receiver and the room lit up in a blue flash and I was knocked to the floor and received a severe shock and pains in my ear. I wasn't able to hear anything at all for some time and it just felt as though the top of my head was being blown off." The plaintiff was taken to the hospital by her sister, who was also employed at the bakery shop. After spending two hours at the hospital for purposes of examination and treatment, she returned to the shop to arrange about matters for which she was responsible, then went home to bed and summoned her family physician.

Plaintiff asserts that as a result of this accident her hearing is impaired, and that she is still suffering from nervous exhaustion. An excessive saliva condition, accompanied by hemorrhages and vomiting spells, has developed. She claims to have severe pains in her ears, and pains down her back, extending beyond the middle of the body. She testified that these ills have made her employment impossible. Evidence of medical and lay witnesses was introduced to show that prior to the occurrence the plaintiff was a healthy young unmarried woman.

In this action of trespass instituted by plaintiff, the defendant telephone company brought in the City of Philadelphia and the Philadelphia Electric Company as additional defendants. The evidence shows that the wires and cables of the defendant and the additional defendants were all strung on poles owned by the Philadelphia Electric Company. These poles carried five sets of cross arms supporting in descending order the following wires: Topmost were the Electrical Bureau lines of the City; on the second arm were the high tension lines of the defendant electric company, carrying 2300 or more volts; the third arm supported the ordinary house current line of the same company, carrying about 110 volts; the fourth arm was without wires, and the bottom, or fifth one held the service wires of the defendant telephone company. The telephone company was permitted to locate its wires on the poles upon indemnifying the electric company against any loss arising from their use.

There seems to be no dispute as to the cause of the accident. It is established by the evidence that a city wire used for police and fire alarm purposes, which employees of the city's electrical bureau were removing from the topmost cross arm at the time of the accident, broke or became disengaged at the point where it was tied to a glass insulator on the cross arm. In falling this wire crossed and contacted both the high tension wire of the electric company, two feet below, and the cable of the telephone company, twelve feet below, thereby circuiting the high voltage along the telephone lines into the bakery shop.

The trial judge at the conclusion of the testimony directed a verdict for the Philadelphia Electric Company, and then permitted the case to go to the jury, which returned a verdict in favor of the plaintiff against the telephone company. The jury also made the following finding: "The jury find from the evidence that the Keystone Telephone Company failed to exhibit the requisite degree of care 'in that the wires were not sufficiently insulated to safeguard the public.'" It rendered a verdict in favor of the City of Philadelphia.

The telephone company filed motions for judgment non obstante veredicto and for a new trial. The rule for a new trial was dismissed without discussion by the court below, but the motion for judgment non obstante veredicto was granted by the court in banc, and judgment thereon entered in favor of the defendant. This appeal was then taken by the plaintiff.

The single question before us is whether there was sufficient evidence of negligence on the part of the defendant to submit the case to the jury.

The high degree of care required of a utility company supplying electric current, or using electricity for the operation of its service, to protect its customers and patrons from injury, has been recognized almost universally by the courts. It has been pointed out that electricity is potentially the most dangerous of the utilities in common use to-day. Leaking gas normally can be detected by its odor, and probably most gas leaks are discovered and repaired before serious injury results. Water escaping from confinement frequently announces itself to sight or hearing before it does substantial harm. Electricity, however, is a most subtle and dangerous agency. It lurks unsuspected in the simple and harmless wire, and gives no warning of its dangerous presence. ^[1] As it was said in Fitzgerald v. Edison Elec. Co., 200 Pa. 540, 543: "Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in this respect is not apparent to ordinary observation, and the public, therefore, while presumed to know that danger may be present, are not bound to know its degree in any particular case."

This Court has many times defined the duty of care imposed upon a utility company supplying a service which involves the use of electricity: Alexander v. Nanticoke Light Co., 209 Pa. 571, 579; Crowe v. Nanticoke Light Co., 209 Pa. 580; Long v. St. Clair Boro., 253 Pa. 92; Seeherman v. Wilkes-Barre Co., 255 Pa. 11. In Derrick v. Harwood Elec. Co., 268 Pa. 136, Mr. Justice WALLING referred to this duty of care as applied to an electric company, where damage was caused by a high voltage current entering the premises of its customer over its wires, and said, (p. 141): ". . . while an electric company is not an insurer, yet, when its customer is injured by an excessive current of electricity entering his premises on the company's wires, the burden is upon the latter to offer such explanation as will relieve it of responsibility."

The degree of care required of a telephone company is of like character. While the current it uses is a harmless one, it cannot be unaware that its wires can become the conductor of a dangerous one, and it must do all that human care, skill and vigilance can devise to protect its patrons from injury caused by an electric current.

If such an injury does occur, there is a presumption that the telephone company failed to use due care. That principle was settled, particularly with respect to the transmission of a current of high voltage over the wires of a telephone company, in Delahunt v. United Tel. & Tel. Co., 215 Pa. 241, and the language used there may well be considered in connection with the facts of the present case. It was said (p. 247): "In this case it may be still further conceded that the current, with which the deceased came in contact did not come from the exchange of the appellant; but at the same time it cannot be questioned that it came over one of its wires leading to the telephone of one of its patrons. . . . It was, therefore, as much the duty of the company to see that no such current should thus pass over its wires as it was to send only a harmless one from its own exchange. Its duty to its patrons was to exercise at all times the highest degree of care and vigilance to protect them from a dangerous electric current over its wires from any source. . . . When they do become conductors of it, there is reasonable evidence that there has been a neglect of duty, and the burden is cast upon the telephone company of showing that it had not been negligent."

To establish that it had exercised proper care, the telephone company produced expert testimony that its cable and appliances...