Appeal, No. 57, Jan. T., 1955, from judgment of Court of Common Pleas of Lebanon County, Dec. T., 1953, No. 116, in case of Mazie Thornton, Admrx. of Richard J. Thornton, Deceased v. Walter H. Weaber, Admr. of Nelson N. Weaber, Deceased. Judgment reversed. Trespass for wrongful death. Before EHRGOOD, P.J. Verdicts for plaintiff, under Death Act in the sum of $500., and under the Survival Act in the sum of $6750., and judgments entered thereon. Defendant appealed.
James R. Koller, with him Siegrist, Koller & Siegrist, for appellant.
Christian R. Gingrich, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. JUSTICE MUSMANNO
The tragedy which gave rise to the lawsuit involved in this appeal began as a Saturday afternoon pleasure excursion and ended in the death of two boys, 14 and 16 years of age. On April 18, 1951, Walter H. Weaber, owner of a large auto-truck, allowed, with more indulgence
than wisdom, his 16-year old son Nelson to take this cumbersome truck for the purpose of transporting himself, his brother Galen, 10, and Richard J. Thornton, 14, on a fishing trip. Proceeding in a drizzling rain along Pennsylvania Highway Route No. 241 in South Annville Township, Lebanon County, and approaching a curve in the road, the truck skidded off the highway, ploughed through the berm, mowed down two guard posts and a cable fence, cut through a utility pole carrying high tension electric wires, plunged over an embankment and finally overturned in a meadow some 5 to 10 feet from the highway. The protruding cab of the truck protected the boys from serious injury and they extricated themselves without too much difficulty, although Richard's foot for a moment was wedged within the cab.
With the snapping of the utility pole, the highly charged wires fell to the ground, coming into contact with parts of the truck. Sparks rising from the truck as well as slight shocks felt by the boys warned them that uncurbed electricity was on the loose. They decided not to return to the highway directly above the wrecked vehicle because they feared that the electric wire might have charged the torn cables which made up the fence, through or over which they would have to climb to obtain help. They reasoned that if they went further along the road to some point sufficiently removed moved from the broken cables, they could pass on to the highway with safety. Richard and Nelson entered into the weeds and bushes covering the embankment and worked their way to that assumed safety point. Galen did not accompany his companions because, as he later expressed it, "I thought I would be caught in the briars." He took a less arduous but longer course of travel in seeking assistance.
When Richard and Nelson reached a point about 150 feet away from the wreckage, they left the embankment and sought to gain the haven of the highway. As they touched the separating fence, the high voltage, which had been communicated to it by the dangling tension wire, electrocuted them on the instant, and their bodies were found hanging over the cables they had attempted to cross.
On the death and survival actions brought by Mazie Thornton, administrator of the estate of Richard Thornton, against Walter Weaber, administrator of the estate of Nelson Weaber, the jury returned verdicts, respectively, of $500 and $6750. The defendant ...