Stimmel v. Kerr

• Decision Date: 05 January 1959
• Citation: 394 Pa. 609,148 A.2d 232
• Parties: Ada May STIMMEL, Administratrix of the Estate of Herbert George Balls, deceased, v. William E. KERR and West Penn Power Company, a corporation. Florence P. CARBERRY, Administratrix of the Estate of Oscar Eugene Carberry, deceased, v. William E. KERR and West Penn Power Company, a corporation. Appeals of William E. KERR.
• Court: Pennsylvania Supreme Court

Page 232

148 A.2d 232

394 Pa. 609

Ada May STIMMEL, Administratrix of the Estate of Herbert

George Balls, deceased, v. William E. KERR and West Penn Power Company, a corporation.

Florence P. CARBERRY, Administratrix of the Estate of Oscar

Eugene Carberry, deceased, v. William E. KERR and West Penn Power Company, a corporation.

Appeals of William E. KERR.

Supreme Court of Pennsylvania.

Jan. 5, 1959.

Rehearing Denied Feb. 19, 1959.

Harold R. Schmidt, William M. Gardner, Rose, Rose & Houston, Pittsburgh, for appellant.

Robert B. Ivory, Evans, Ivory & Evans, Pittsburgh, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES and COHEN, JJ.

COHEN, Justice.

The appellant, one of the defendants in a trial arising out of two actions of trespass to recover damages for the deaths by electrocution of two decedents, appeals from the lower court's order granting a new trial limited to him, after verdicts were rendered for him and the West Penn Power Company.

The facts surrounding the accident reveal that both decedents, employes of a rigging and hauling contractor, were assigned to deliver steel trusses to the farm of defendant Kerr. After being instructed by Kerr's agent where the steel trusses were to be placed, the decedents proceeded to unload the trusses by means of an A-frame. The two decedents backed into the field in a stooped position. The truck containing the A-frame (which suspended the steel truss one foot above the ground) was also being driven backwards in the field. The A-frame contacted the transmission wires maintained on a West Penn Power Company right-of-way fatally electrocuting both decedents.

This instruction was submitted by defendant Kerr and read to the jury by the court: 'If you believe * * * [decedents] could have seen the wires or poles if they had looked, then your verdict must be for the defendant, Kerr, and for the defendant, the West Penn Power Company.'

The import of the court's charge was tantamount to a directed verdict and clearly indicated that the mere presence of the wires or the poles was sufficient warning to place the decedents on notice of the danger and completely relieve the landowner of liability. We have consistently held that the duty incumbent on a possessor of land as to a business visitor is to keep the premises reasonably safe or to warn of dangers existing thereon which the occupier knows or should know exist. However, this affirmative duty is not required of a possessor of land if the danger to be warned against is an obvious one. McCreery v. Westmoreland Farm Bureau Co-operative Ass'n, 1947, 357 Pa. 567, 570, 55 A.2d 399. See Restatement, Torts § 343.

Appellants advocate, in maintaining that a new trial is not warranted, that the presence of poles or wires indicated such an obvious hazard and warning to decedents that their subsequent conduct was contributorily negligent as a matter of law. In passing upon this precise point, our Court, in Stark v. Lehigh Foundries, Inc., 1957, 388 Pa. 1, 8, 130 A.2d 123, 128, after the plaintiff admitted that he saw the wires, said:

'The presence of the power lines in and of itself did not indicate obvious danger. Plaintiff was not bound to know the degree of danger involved. 'Wires charged with an electric current may be harmless, or they may be in the highest degree dangerous. The difference in...