Lamont v. West Penn Power Co.
| Decision Date | 14 April 1930 |
| Docket Number | 58 |
| Citation | 300 Pa. 78,150 A. 155 |
| Parties | Lamont v. West Penn Power Co., Appellant |
| Court | Pennsylvania Supreme Court |
Argued March 20, 1930
Appeal, No. 58, March T., 1930, by defendant, from judgment of C.P. Allegheny Co., April T., 1928, No. 1372, on verdict for plaintiff, in case of Samuel Lamont v. West Penn Power Co. Affirmed.
Appeal from award of viewers. Before EVANS, P.J.
The opinion of the Supreme Court states the facts.
Verdict and judgment for plaintiff for $3,000. Defendant appealed.
Errors assigned were various rulings and instructions, quoting record.
The judgment of the court below is affirmed.
Edward O. Tabor, of McCahill & Tabor, for appellant. -- Lamont's evidence should have been stricken out.
The witness, Stotler, was not qualified to express an opinion as to market value: Parry v. R.R., 247 Pa. 169; Friday v. R.R., 204 Pa. 405.
Defendant should have been allowed to cross-examine plaintiff's witness, Banks, to find out how much of the $6,000 depreciation he allocated to the improper element of "fear" of electric wires: Shuster v. Telegraph Co., 34 Pa.Super. 513; Sunbury R.R. v. Hummell, 27 Pa. 99; Wallace v. Gas Co., 147 Pa. 205.
The testimony of plaintiff's witness, Morrow, should have been struck out: Denniston v. Phila. Co., 1 Pa. Superior Ct. 599.
Clyde A. Armstrong, for appellee. -- Where a company uses a dangerous agency, like an electric current of high power ordinary persons must know that danger attends contact with electric wires: Morris v. Electric Co., 278 Pa. 361.
The trial court did not refuse to strike out Lamont's testimony: Western Penna. R.R. v. Hill, 56 Pa. 460; Pitts., V. & C. Ry. v. Vance, 115 Pa. 325.
The court did not err in charging the jury that appellee was entitled to the difference in the market value of the property before and after the construction of appellant's lines: Murphy v. Dyer, 223 Pa. 18; Leh v Dutt, 66 Pa.Super. 171.
Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.
The West Penn Power Company in March, 1924, completed the construction of a power plant with high tension electrical transmission wires above a public road which traverses a triangular section of plaintiff's farm of five acres, in Plum Township, Allegheny County. The power cables, or lines, each carry and transmit 132,000 volts of electricity, and are suspended from steel towers, which structures are not upon plaintiff's land, but within 80 feet of it; and from these towers the wires extend over claimant's property. His dwelling house, in which he resides, is distant 37.54 feet from the nearest wire, and other buildings, comprising a frame barn and a garage, are about the same distance from the wires. From the power plant, electricity of high voltage is transmitted over the line in question to various sections in Western Pennsylvania and in West Virginia. In 1927, upon application by Lamont, appellee here, averring that his property was damaged by the presence and operation of defendant's wires strung above it, viewers were appointed by the court, who awarded damages in the sum of $100. Lamont appealed from the award to the court of common pleas, where the case was heard before a jury and a verdict returned in favor of plaintiff for $3,000. A motion by defendant for a new trial was refused and this appeal followed.
As we understand the various assignments of error presented by appellant's counsel, the sum and substance of their complaints are, a lack of proper qualification of several of plaintiff's witnesses to testify to the market value of appellee's land before and after the construction of defendant's power plant; that in reaching their opinions as to the amount of damages plaintiff had sustained, their estimates were based on a consideration of injuries resulting from negligent construction and operation of the wires over appellee's premises, and alleged improper rulings of the trial judge. None of these assignments of error possess sufficient merit to sustain them, and we shall make specific reference to them only if required in our general discussion of the case.
It is true, as the record shows, that several of plaintiff's witnesses had a vague and confused notion that while they believed the erection and operation of the high tension wires seriously damaged appellee's premises, they should also consider, in reaching their beliefs, the danger that might result from negligent construction and operation of the lines. At its strongest, this testimony was indefinite and inconclusive; and the trial judge was prompt in removing whatever effect it might have on the minds of the jury by preventing its admission. Not only was all such evidence ordered stricken out, but early in the trial the court made the following precise ruling on that sort of evidence, saying, within the hearing of the jury: "In fixing the measure of damages, I am going to allow the difference in the market value before and after [the erection and use of the wires]; but in taking into consideration the question of the market value after this, the witness can take into consideration the danger of accidents without negligence, the dangers which will probably not necessarily happen, but reasonably may happen without negligence." Since, however, appellant's counsel affect to believe that, notwithstanding this emphatic and proper ruling, the jurors were misled and prejudiced by witnesses taking into consideration, in estimating the injury to plaintiff's land, "damages that would result from defendant's negligence," we may here give brief attention to their assignment No. 5, as one typical of appellant's complaints on this subject. Counsel for defendant asked a witness for appellee, on cross-examination: ...
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