Lebeck v. William A. Jarvis, Inc.

Citation145 F. Supp. 706
Decision Date05 October 1956
Docket NumberCiv. A. No. 16087,16395.
PartiesJames LEBECK v. WILLIAM A. JARVIS, Inc. and Philadelphia Electric Company. James LEBECK v. CRANE OPERATING COMPANY, Inc., Defendant and Cross-Defendant and Levitt and Sons, Inc., Defendant, Third-Party Plaintiff and Cross-Claimant (William A. Jarvis, Inc., Third-Party Defendants).
CourtU.S. District Court — Eastern District of Pennsylvania



B. Nathaniel Richter (of Richter, Lord & Levy), Philadelphia, Pa., for James Lebeck.

Thomas E. Comber, Jr. (of Pepper, Bodine, Frick, Scheetz & Hamilton), Philadelphia, Pa., for Wm. A. Jarvis, Inc.

Michael A. Foley, Philadelphia, Pa., for Philadelphia Electric Co.

Thomas E. Comber, Jr., Philadelphia, Pa., for Crane Operating Co.

Joseph J. Murphy and Mark D. Alspach (of Krusen, Evans & Shaw), Philadelphia, Pa., for Levitt & Sons, Inc.

VAN DUSEN, District Judge.

These cases arise out of a tragic accident which took place on May 1, 1953, during the construction of a drainage ditch across the land of the Philadelphia Electric Company by William A. Jarvis, Inc., as general contractor for Levitt and Sons, Inc., which had been granted an easement over this land to construct such a ditch. Plaintiff's injuries resulted from a high voltage of electric current1 passing through his body, as more fully discussed below under the heading "Amount of Verdict." After judgment in the amount of $350,000 was entered in favor of the plaintiff and against William A. Jarvis, Inc., Crane Operating Company, Inc., and Levitt and Sons, Inc., on the jury's answers to special questions2 in accordance with F.R.Civ. P. 49(a), 28 U.S.C., several post-trial motions were filed which are now before the court for disposition.

The evidence, in the light most favorable to the plaintiff, establishes this factual situation:

A. Under date of September 12, 1952, counsel for Levitt and Sons, Inc., wrote a letter to the Assistant General Counsel of Philadelphia Electric Company, proposing a settlement of "various problems outstanding" between the two companies (P-1). Paragraph 5 of this letter contained the following language:

"Electric will permit Levitt to construct drainage ditches not in excess of 70 feet wide through its Emilie Substation property, * *.
"The construction of the drainage ditches on the Emilie Substation property of Electric shall be made in the manner and at the locations indicated on Drawing No. 731 of Levitt and Sons, Incorporated, dated August, 1952, and entitled `Preliminary Drainage Plan for Main Ditch No. 3 and Branch Ditch No. 3-C.'"3

By letter of the same date (P-26), the Assistant General Counsel of Philadelphia Electric Company accepted the proposals in the above-mentioned letter from counsel for Levitt and Sons, Inc., and stated:

"I am also authorized to inform you that your construction forces may commence work on the drainage ditches on our property at any time on and after September 15, 1952, provided, however, that notice of the time and place of the commencement of work is given in advance to Mr. William F. Roth, Division Superintendent, whose office is located at 1938 Wharton Road, Jenkintown, Pennsylvania."4

Mr. Ludlow, General Superintendent of construction of Levitt and Sons, Inc., was notified by the Legal or Engineering Department of his company in connection with this 3-C project: "We completed our negotiations; notify them when you go in." (N.T. 1108.)

Levitt and Sons, Inc., entered into a contract with William A. Jarvis, Inc., dated March 3, 1953 (D-40), to which there was attached an addendum dated April 8, 1953, providing for construction by William A. Jarvis, Inc., of "Main Drainage Ditch 3-C * * * to include three (3) culverts and three (3) check dams." Mr. Roth testified that he never received any notice that work had begun on this drainage ditch, which was constructed in the vicinity of the Emilie Substation of the Philadelphia Electric Company. If he had received such notice, Mr. Roth testified that the wires would have been de-energized, an inspector put on the job, or the contractor required to do the job in a way that would not have necessitated either of the first two alternatives (N.T. 228). The accident took place during work on construction of the above-mentioned ditch 3-C at a point about 900 feet from the back of the Emilie Substation (see P-13),5 which is located between the scene of the accident and Mill Creek Road, on which the Substation fronts.

B. Plaintiff started to work for the Levittown Supply Company on July 7, 1952, as a pipe layer or pipe fitter. William A. Jarvis was President of, and controlled the stock of, Levittown Supply Company, Crane Operating Company, Inc., and William A. Jarvis, Inc., which companies participated in the development of the Levittown area of Bucks County, Pa., during 1952 and 1953. The practice of Mr. Jarvis, as chief executive of the companies, was to use the men employed by any of the companies on any project where their services were needed, even though such project was being constructed by another company. The company carrying the employee on the payroll would pay its employee, but such company would be reimbursed by the company to whom the employee was loaned.6 William A. Jarvis, Inc., entered into a contract with Levitt and Sons, Inc., to construct a drainage ditch known as 3-C (D-40).7 Employees of the above-mentioned three companies worked on this 3-C project and compensation of personnel on the payroll of Levittown Supply Company and Crane Operating Company, Inc. (including Mr. Yatsko, the crane operator) who worked on this project was charged to, and paid for by, William A. Jarvis, Inc. by those companies (D-1 and N.T. 966, 971, 809-11, 849, 850-1). Mr. Allen testified that he was acting as general supervisor of this 3-C project for William A. Jarvis, Inc., at the time of this accident, even though he was on the payroll of Crane Operating Company, Inc. (N.T. 738). He identified the daily work sheets (D-1) covering this project, and showing that plaintiff, Mr. Yatsko, and the other employees were working on it, which sheets he prepared and on the basis of which the employees were paid by the company on whose payroll they were carried. Plaintiff never consented to work for any company other than Levittown Supply Company and neither knew that he had been loaned to William A. Jarvis, Inc., nor did he consent to work for that company. Mr. Coyne, who was on the payroll of William A. Jarvis, Inc., was the local foreman on this 3-C project with the usual supervisory and control powers of a foreman over all the personnel, with the exception of plaintiff (N.T. 681, 1017, 1118).

C. Work by plaintiff on this drainage ditch project started about two weeks prior to the accident. A crane with a shovel on the end had been digging out the ditch in which concrete pipe (5 or 6 feet in diameter) was laid. After a portion of the ditch had been dug by the crane, the bulldozer operator (Mr. Holliday) pushed the pieces of concrete pipe, which weighed 6 to 9 tons, down to the edge of the ditch with the bulldozer (P-128). Mr. Coyne and Mr. Weber hooked the crane cable (the shovel having been detached) through a hole in the center of the pipe to a bolt inside the pipe and told the crane operator (Mr. Yatsko) to raise the pipe with the crane and lower it into the ditch. Plaintiff's job was to see that the pipe was not broken and, with the help of the crane operator, fit each piece of pipe into the piece already laid, next to which it was to be placed. The Helmig brothers, and sometimes Mr. Galford, assisted plaintiff in getting each piece of pipe in position in the ditch. When the weight of the pipe was released from the boom of the crane as it was "eased" to the ground, the top of the boom would always rise to "some" extent, but the movement from the release of weight in this case would have been slight.

D. The body of the crane was parallel to the ditch while the pieces of pipe were being put into the ditch (P-17). The treads supporting the body of the crane were on wooden pads (P-24, P-18) to prevent the treads from sinking into the soft, marshy ground. The body of the crane was 4 or 5 feet from the edge of the ditch. As part of the drainage ditch project, it was necessary to clear the ground of underbrush and trees, to do excavation, and also to build a spillway,8 as well as to lay the pipe. During the two days immediately preceding the day of the accident, plaintiff had been working on the spillway by helping to put up forms into which the concrete was poured.9

E. Since on May 1, 1953, the bulldozer broke down, Mr. Allen, the field boss,10 came out to the scene of the work after lunch and plaintiff asked him about the overhead electric wires. Mr. Allen answered, "Jim, they are off." He said, "You got to get them pipes in right because we can't keep the power off."11 In reliance upon this inaccurate statement of Mr. Allen made about 2 P.M., plaintiff went down in the ditch12 and worked under the wires, which crossed the ditch at right angles. (Cf. P-6.)13 The lowest of the three wires of the Philadelphia Electric Company (see footnote 1) was 44 feet 8 inches above the ground and the highest of these wires was 49 feet above the ground. The boom was set at such an angle that its top was about 10 feet below the lowest wire (N. T. 454-5, 1026-8) and the crane operator could only move the boom sideways in putting the piece of pipe in the ditch. Three pieces of pipe were successfully put in place in the ditch, parallel to each other, without incident prior to the accident. Immediately prior to the accident, plaintiff was standing in the ditch with the crane cab behind him and the boom14 extending over his head out in front of him, lowering the fourth piece of pipe into the ditch. At first, plaintiff was giving directions to the crane operator with his hands and, when the piece of pipe was being pushed into place...

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