Skoda v. West Penn Power Co.

Decision Date04 June 1963
Citation411 Pa. 323,191 A.2d 822
PartiesVirginia SKODA, Adm'x of the Estate of Frank B. Skoda, Jr., Deceased, v. WEST PENN POWER COMPANY, a Corporation, Appellant, and National Mines Corporation, a Corporation, Added Defendant.
CourtPennsylvania Supreme Court

Robert W. Smith, Jr., Smith, Best & Horn, Greensburg, George Y. Meyer, Meyer, Darragh, Buckler & Bebenek, Pittsburgh, for appellant.

Ned J. Nakles, Lightcap, McDonald & Moore, Latrobe, Louis C. Glasso, Thomas A. Livingston, Pittsburgh, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, EAGEN, and O'BRIEN, JJ.

O'BRIEN, Justice.

This is an appeal by West Penn Power Company, a corporation, from a judgment entered against it and National Mines Corporation on a verdict of a jury, in a survival action by appellee, as administratrix of her deceased husband's estate.

Frank B. Skoda, Jr., employed by National Mines Corporation as a mechanic, was injured while at work on June 24, 1957, and died on August 17, 1957, as a result of the injuries. The West Penn Power Company supplied electricity to the National Mines Corporation at its plant in Luzerne Township, Fayette County.

Wrongful death and survival actions were instituted by Virginia Skoda, widow of the deceased, in her capacity as administratrix of her husband's estate. The wrongful death action was nonsuited as it was barred by the statute of limitations and a verdict in the survival action was returned in the amount of $152,213.00. We are only concerned with the judgment in the survival action, as it is agreed the wrongful death action is barred by the statute of limitations. The National Mines Corporation was joined as additional defendant by the West Penn Power Company and the verdict is against both defendants. The West Penn Power Company filed motions for a new trial and for judgment n. o. v. The National Mines Corporation did not file any motions or join in this appeal.

Appellant, in its contention for judgment n. o. v., maintains that: (1) there is not sufficient evidence to submit to the jury the issue of negligence of West Penn Power Company, either as the sole legal cause of the accident, or as the concurrent cause with the negligence of National Mines Corporation; and (2) the decedent was, as a matter of law, contributorily negligent. In its motion for new trial, West Penn says the verdict was so shockingly disproportionate to the injuries of decedent as to be excessive.

In considering judgment n. o. v., the evidence, together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner. Ischo v. Bailey, 403 Pa. 281, 169 A.2d 38 (1961); Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91 (1961); Muroski v. Hnath, 392 Pa. 233, 139 A.2d 902.

The evidence, so considered, shows that Frank B. Skoda, Jr., at the time of his death was 35 years old, he was employed by the National Mines Corporation as a mechanic for about ten years. His place of employment was in and about the garage building, repair shop and other buildings of National Mines in Luzerne Township, Fayette County. On June 24, 1957, the day of the accident, he was engaged with another employee in repairing a fuel tank on a 22 ton Euclid dump truck, which was used exclusively on the premises of National Mines for the purpose of hauling mine refuse from the mine opening to the slate dump. It was necessary to remove the fuel tank from the body of the truck and in order to do so the truck body was elevated hydraulically and and then a timber was wedged under the body to prevent it from falling while the tank was removed. The truck was placed over an underground fuel tank, near the entrance to the mine garage, to drain the fuel from the truck before removing it for the repairs. It became necessary to move the truck in order for other trucks to have access to the underground fuel tank.

The work of removing the fuel tank, welding and painting it was done in the morning, and in the afternoon, in moving the truck without the fuel tank, Skoda walked along beside the truck carrying a gallow fuel can in which was placed a line feeding to the engine of the truck. Robert Pierno, a fellow employee, slowly drove the truck in reverse while watching Skoda's feet. The truck was moving backwards with the body in the upright position, Pierno watching Skoda's feet, when the topmost part of the body, known as the truck cab protector, came in contact with a high tension wire. Pierno heard a hissing sound and stopped the truck and, alighting, saw decedent on the ground enveloped in fire. The fire was extinguished with the help of other employees and Skoda was taken to the hospital where he died as a result of the burns on August 17, 1957.

The wire touched by the truck was one of three parallel wires which carried 25,000 volts of electricity. The electrical lines of the appellant supplied the electricity to National Mines, which lines were carried by means of poles to a transformer station, which was a brick structure with an enclosed area in which were poles and transformers. The wires were between 20 and 21 feet from the ground, copper and uninsulated. The top of the dump truck, with the bed extended at the time of the accident, was 20 to 21 feet from the ground. The truck bed extended approximately 3 to 5 inches above the wire at the point of contact. The truck stopped with the bed between the first and second wire, contact having been made with the first wire. The vehicle was equipped with large rubber tires. The truck was backed approximately 93 feet from where it was at the garage to the point of contact with the electrical wire. The poles supporting the wires to the transformer yard had a span of approximately 154 feet. There would be a normal sag in the line which would vary somewhat with the temperature.

National Mines had five trucks that were used and serviced in this area. They were greased and washed once a week. The lubrication of the trucks generally took place in the garage and outside the doors on an apron which extended about 55 feet from the garage door towards the transformer station. The trucks were washed at a place nearer the transformer station and closer to the overhead electric wires and the trucks were sometimes parked in the vicinity of the transformer yard and had sometimes been parked under the wires with the bodies in a flat position. The area in which the trucks were lubricated, which operation required the extension of the bodies, was approximately 60 feet from the high tension wires, and the area in which the trucks were washed, also with the bodies extended, was nearer to the wires.

It is a well recognized statement of the law that a supplier of electricity must exercise the highest decree of care, however, it is not an insurer against injury. While the supplier of electricity is under the duty of a high degree of care there is likewise imposed upon those who are aware of and work in the vicinity of electrical high tension wires a duty to exercise reasonable care to avoid injury to themselves and others. Stark v. Lehigh Foundry Inc., 388 Pa. 1, 130 A.2d 123 (1957); Brillhart v. Edison Light & Power Co., 368 Pa. 307, 82 A.2d 44 (1951); Durinzi v. West Penn Power Co., 357 Pa. 576, 55 A.2d 316 (1947); Reed v. Duquesne Light Co., 354 Pa. 325, 47 A.2d 136 (1946).

The high tension wires were between 20 and 21 feet above the ground. The wires had been erected and maintained in this condition for many years previous to the death of the decedent. The employees of National Mines engaged in work in the immediate vicinity of the transformer knew of the existence and danger of the wires. The record indicates that the men discussed the danger of this situation. The transformers were in the area of a cluster of buildings in which were carried on the various activities of National Mines in maintenance incidental to the operation of mining by National Mines. The buildings consisted of blacksmith shop, garage and paint shop. The maintenance work on the trucks was conducted at a distance of 60 feet and less from the high tension wires. The work on the trucks required the bodies to be raised in servicing and washing them. The evidence indicates that the large trucks with their bodies extended were between 20 and 21 feet above the ground. There is evidence in the record that the trucks had been parked with the bodies flat under these high tension wires, but the practice had been discontinued about a year previous to the death of the decedent.

There is no statutory requirement regulating the minimum height of the high tension wires. In Brillhart v. Edison Light & Power Co., Supra, this court said:

'Although a minimum clearance for high voltage wires strung over buildings and land has not been statutorily prescribed, the common usage in the business is a fair test or standard of care. Maize v. Atlantic Refining Co., 352 Pa. 51, 57, 41 A.2d 850, 160 A.L.R. 449. As stated in Koelsch v. Philadelphia Co., 152 Pa. 355, 362, 25 A. 522, 524, 18 L.R.A. 759,--'While no absolute standard of duty in dealing with such agencies can be prescribed, it is safe to say, in general terms, that every reasonable precaution suggested by experience and the known dangers of the subject ought to be taken."

There was evidence of the Federal Mine's Safety Code prescribing a minimum of 20 feet clearance height for wires of this type. However, this code did not apply to the electrical industry. There was evidence of the appellant's minimum wire clearance specifications which indicated the minimum clearance to the ground in this type of wires should be 22 feet. The record herein indicates sufficient evidence for the jury to consider negligence of appellant. Stark v. Lehigh Foundry, Inc., Supra.

Appellant maintained that even if it was in some manner negligent in the installation and maintaining of its power lines, that negligence was quiescent, and but for the...

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