Saez v. Philadelphia Electric Co.
| Decision Date | 18 December 1981 |
| Docket Number | 2133 |
| Citation | 6 Phila. 600 |
| Parties | Raphael Saez v. Philadelphia Electric Company |
| Court | Pennsylvania Commonwealth Court |
(1) Trial judge may refuse to charge in argumentative language of counsel if the judge fully and correctly addresses all issues
(2) Post trial, a party may not take exception to a point for charge, when that party failed to take exception in a timely manner during trial
(3) One who provides or supplies an inherently dangerous instrumentality, such as high-voltage electric current, is required to use the highest degree of care practicable to avoid injury to everyone who may be lawfully in the area of such activity
(4) Expert testimony presented jury question whether defendant complied with National Electric Safety Code and further whether compliance was sufficient to fulfill duties imposed upon supplier of electricity
(5) National Electric Safety Code is not an exceptional body of standards intended to preclude jury instruction on contributory negligence. Restatement of Torts, Second § 483
(6) Plaintiff failed to establish that loss of memory occurred as a result of the accident, and court properly refused to charge on presumption of due care
(7) Customary methods of conduct do not establish the standard of care by which negligence is measured.
Larry Coben, Esquire, for Plaintiff
John Tinaglia, Esquire, for Defendant
OPINION
On September 17, 1971, plaintiff instituted suit against the Philadelphia Electric Company and Bernardo Tellado. The cause of action arose out of an accident which occurred on September 21, 1969 in which plaintiff came into contact with a high voltage electrical wire. On April 8, 1980, trial began before the Honorable MURRAY C. GOLDMAN and a jury. The jury returned a verdict in favor of the defendant [1] on April 17, 1980.
Presently, plaintiff comes before the court en banc moving for a new trial. Plaintiff assigns as error the following six points involving the instructions of the trial judge to the jury:
1. failure properly to instruct the jury regarding the degree of care the defendant owed to the plaintiff;
2. failure to instruct the jury that compliance with certain minimum standards does not preclude a finding of liability;
3. failure to instruct the jury on the relationship of the minimum standards and contributory negligence;
4. failure to instruct the jury that plaintiff was entitled to a presumption of due care;
5. failure to instruct the jury that defendant is not necessarily exculpated from liability because conduct conformed to defendant's conduct elsewhere;
6. improper presentation of different and inconsistent instructions on the standard of care.
On September 21, 1969, plaintiff was engaged in the painting of the trim on the house of his brother-in-law, Bernardo Tellado, in Bristol, Pennsylvania (N.T. April 14, 1980, 27-28). The sheer, anticlinal structure of the roof mandates artificial support for those traversing the roof. Plaintiff fastened an aluminum ladder to the roof which he then employed as a platform (N.T. April 14, 1980, 27-37, 64-68). He perched on the anchored ladder as he leaned over the precipice of the house in order to paint the cornice. When plaintiff completed his task, he proceeded to the peak of the roof so that he could move the ladder from one side of the roof to the other (Id. 28-32, 67-69). Plaintiff testified that as he commenced the transfer, a strong wind arose (Id. 31-32). The evidence indicates that the ladder came into contact with a primary electric wire which was conducting 2400 volts (N.T. April 9, 1980, 15; N.T. April 10, 1980, 41, 162-163, 165). Upon contact with the wire, the ladder conducted electricity causing injury to plaintiff.
The defendant, Philadelphia Electric Company, installed and maintained the wire involved in this litigation (N.T. April 16, 1980, 9). At the point of contact with the ladder, the wire was three feet, four inches distant from the edge of the roof (N.T. April 10, 1980, 41). Each party offered expert testimony regarding the safety of the installation of the wire.
Several legal principles are fundamental to an examination of jury instructions.
The charge to a jury must be examined in its entirety against the background of the evidence. McCoy v. Phila. Electric Co., 447 Pa. 490, 291 A.2d 759 (1972); Witner v. Von Hintz, 437 Pa. 448, 263 A.2d 889 (1970); Slavish v Ratajcyak, 277 Pa.Super 272, 419 A.2d 767 (1980). Isolated portions of a charge, even if erroneous, will not justify a new trial unless " basic, fundamental and prejudicial error" exists. Gilmore v. Marsh, 424 Pa. 361, 227 A.2d 881 (1967); Segriff v. Johnston, 402 Pa. 109, 166 A.2d 496 (1960), cert. denied 366 U.S. 941, 81 S.Ct. 1669, 6 L.Ed.2d 851 (1961); James v. Ferguson, 401 Pa. 92, 162 A.2d 690 (1960). If when the charge is taken as a whole and when the general effect of the charge is examined, the charge is not misleading, then substantial error is not present although portions of the charge may contain minor inaccuracies, omissions or misstatements. Mount v. Bulifant, 438 Pa. 265, 270, 265 A.2d 627 (1970).
The law charges the trial judge with the duty to define with clarity, precision and impartiality the issues for the consideration of the jury. Vaughn v. Phila. Transport Co., 417 Pa. 464, 209 A.2d 417 (1965); Eisert v. Jones, 399 Pa. 204, 159 A.2d 723 (1960). Moreover the trial judge is not compelled to adopt the language of counsel as requested in points for charge. Hence, the trial judge may refuse to give requested instructions if the judge fully and correctly addresses all the issues. Strupper v. Rexford, 326 Pa. 545, 548, 192 A. 886 (1937); Simkins v. Barcus, 168 Pa.Super 195, 77 A.2d 717 (1951).
Finally, the trial judge must place a premium on accuracy and fairness. In the quest for impartiality and fairness, the judge must refuse any charge which is argumentative in nature; for argument has no proper place in the charge. Bizich v. Sears, Roebuck & Co., 391 Pa. 640, 139 A.2d 663 (1958); Henry v. Klopfer, 147 Pa. 178, 23 A. 337 (1892); Stady v. Martocello, 156 Pa.Super 493, 40 A.2d 694 (1945).
With respect to the degree of care which the defendant owed plaintiff, the trial judge charged as follows: " Anyone who provides, supplies or supplies [sic] an inherently dangerous instrumentality, such as high-voltage electric current, which was provided by the defendant in this case, is required to use the highest degree of care practicable to avoid injury to everyone who may be lawfully in the area of such activity" (N.T. April 17, 1980, 51-52). Plaintiff took exception to the charge as stated (N.T. April 17, 1980, 64-65), and requested that the jury be instructed on his submitted points for charge numbers 11, 12 and 13 which read as follows:
11. Because electricity is highly dangerous, the defendant must use the highest degree of care practicable to avoid injury to everyone who may be lawfully near to its wires and liable to come accidentally in contact with these wires. (Citations omitted.)
12. One who is responsible for the placement and installation of electric power lines must take every reasonable step for the protection of human life, regardless of difficulties or expense. (Citations omitted.)
13. The law of Pennsylvania recognizes that a transmission line is a dangerous instrumentality, and consequently a utility company is required to exercise a high degree of care to protect the public from this instrumentality no matter where the line is located. (Citations omitted.)
(N.T. April 17, 1980, 79).
Although the requested points for charge are not erroneous with respect to any point of law, Brillhart v. Edison Light & Power Co., 368 Pa. 307, 82 A.2d 44 (1951); Yoffee v. Pa. Power & Light Co., 385 Pa. 520, 536, 123 A.2d 636 (1956), it was properly within the prerogative of the court to refuse to charge as such. The court did instruct the jury on all of the issues concerning the standard of care, including those requested by plaintiff. Moreover, the charge of the court was an accurate and complete statement of the law addressed in a manner devoid of any partial or unfair argument. See, Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 8, 130 A.2d 123 (1957); Durinzi, Admr. v. West Penn Power Co., 357 Pa. 576, 580, 55 A.2d 316 (1947); Mac-Dougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 392-393, 166 A. 589 (1933). In fact, the charge of the court substantially traces the Pennsylvania Standard Jury Instructions -- Duty of Care (Inherently Dangerous Instrumentality). Pa. SSJI (Civ.) 3.16 (March 1980). Any reference to accidental contact with the wire or location of the wire is argumentative and unnecessary verbiage which tends to obfuscate the issues. Accordingly, the charge concerning the standard of care and the refusal of the corresponding points of plaintiff was proper.
At trial, both parties devoted substantial portions of their case to expert testimony on the National Electric Safety Code and on defendant's compliance thereto (N.T. passim ). In this regard, the trial judge instructed the jury as follows:
We have in this case various contentions of experts regarding whether the installation was proper. We have evidence of the national code. You have heard about that; you have heard arguments about that. We've heard expert testimony about the national code is an appropriate standard and that it was met. We've heard evidence that might lead to the inference that it was not met. We've had standards that even if it was met, that in these circumstances it was insufficient to fulfill the responsibilities the law...
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