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JOWETT v. PENNSYLVANIA POWER COMPANY. (11/30/55)

November 30, 1955

JOWETT, APPELLANT,
v.
PENNSYLVANIA POWER COMPANY.



Appeals, Nos. 3 and 4, March T., 1955, from order of Court of Common Pleas of Mercer County, Dec. T., 1952, No. 33, in case of Marjorie Jowett, Admrx. of Estate of Lee A. Jowett, Dec'd. and Jonathan Jowett v. Pennsylvania Power Company. Order affirmed.

COUNSEL

Marvin d. Power, with him Vito Adamo, John W. McWilliams, and Margiotti & Casey, for appellants.

C. E. Brockway, with him Brockway, Brockway & Acker, for appellee.

Before Stern, C.j., Stearne, Jones, Musmanno and Arnold, JJ.

Author: Stern

[ 383 Pa. Page 331]

OPINION BY MR. CHIEF JUSTICE HORACE STERN

Our State Reports contain an extraordinarily large number of decisions of cases dealing with deaths and severe injuries to persons accidentally touching high tension wires, but while they enunciate general legal principles governing the subject each depends largely upon its own particular facts. The present is apparently the first case in which the happening of a tragic accident of that nature was caused by a television antenna - which its owners were engaged in repairing - breaking and coming into contact with the lines of a public utility company.

Marjorie Jowett, Administratrix of the estate of her deceased husband, Lee A. Jowett, and Jonathan Jowett, the father of Lee A. Jowett, are the plaintiffs in this action. Lee was killed and Jonathan burned by a bolt of electricity from the wires of the defendant, the Pennsylvania Power Company. The Jowetts lived in a house on the east side of Mill Street, in Clarksville, Mercer County, extending 36 feet along the street and of a depth of 18 feet; the distance from the ground to the peak of the roof was approximately 22 feet. Along the street was a line of poles on which were strung four wires belonging to the defendant company and two to

[ 383 Pa. Page 332]

    the Bell Telephone Company. Of the defendant's wires the top ones, which were primary or distribution wires, carried a charge of 7200 volts; the lower ones were service lines supplying the street lighting in Clarksville and carried only about 115 volts. Defendant's wires were installed in 1938 under permission of an ordinance of the municipality; they were at a height of about 39 feet above the ground and 22 feet above the peak of the roof of the house.

At some time during the Christmas week of 1951 the Jowetts installed an aerial on the south side of their house. It consisted of two pieces of ordinary galvanized pipe one and a quarter to one and a half inches in diameter; one of the pieces was 21 feet long and the other 26 feet 6 inches, and they were connected by a threaded coupling one and three quarters inches in length. The overall length of the pipe being 47 feet 6 inches it therefore projected some 25 feet above the roof; the coupling was a foot below the ridge of the roof. The pipe was a placed on a piece of slag in a hole about a foot and a half below the surface; it was fastened against the side of the house by two metal clamps or "U" bolts, one midway between the ground and the roof, the other at or immediately below the roof. Near the top were the cross-pieces or prongs of the antenna which made up the receiving apparatus and each of which extended out 4 feet 7 inches. The entire aerial was secured in its erect position by the two clamps and by four guy wires, one to each corner of the roof; these were fastened to the aerial about 3 feet below the bottom of the antenna or some 8 feet below the top of the mast.

On January 18, 1952, as the result of a severe windstorm the southeast guy wire was torn loose from the aerial, and two days later the two Jowett men set out to repair it. Since the prospective reattachment of the

[ 383 Pa. Page 333]

    guy wire to the antenna would have been at a considerable height above the roof the Jowetts planned to lower the antenna so that it could be the more easily reached; to this end they planned to lift the pipe from out of the ground and move the bottom of it away from the wall until the top would be brought down sufficiently for their purpose. They loosened the lower of the two clamps but neglected to remove the upper one. They extended the size of the hole in order to facilitate the raising of the pipe and were in the act of lifting it and drawing the butt away from the wall when it broke at the coupling immediately below the roof. It appeared later that the two lengths of pipe had been coupled together in an extremely defective fashion in that, while one of them extended into the coupling an inch and a quarter, the other had been screwed in only about a quarter of an inch. Who had coupled the two pieces together in the first instance or to what extent, if any, the Jowetts had knowledge of the defect does not appear in the testimony.

The result of the breaking of the pipe was that the upper portion fell on the roof in such manner that either the tip of one of the prongs of the antenna came into direct contact with one of defendant's high tension lines, or so close to it as to permit the formation of an arc, and the Jowetts, holding the lower section of the pipe, were immediately shocked, Lee Jowett being electrocuted and Jonathan Jowett severely burned; the ground on which they were standing was wet and a drizzling rain was falling. It appeared that Jonathan Jowett, the father, 52 years of age, had been engaged for 25 years in the business of installing neon signs and therefore accustomed to working with electricity, while Lee Jowett, 31 years of age, had also been 7 years in the neon sign business. Jonathan Jowett, the survivor, testified that he did not know that the two top

[ 383 Pa. Page 334]

    lines which ran in front of the house were high voltage lines.

At the conclusion of plaintiffs' testimony the court granted defendant's motion for a compulsory non-suit which it subsequently refused to take off, and from such refusal plaintiffs now appeal.

There is, of course, no question but that defendant had a perfect right to maintain and operate its lines in the position which they occupied, and, on the other hand, the Jowetts had also a perfect right to erect and maintain their antenna on the side and above the top of their house where they had placed it. Plaintiffs do not claim that the wires were in undue proximity to the house or that they should have been insulated; (it was testified that such insulation would have been impracticable). The only ground on which they assert a liability of defendant was its failure to warn them that two of its wires were carrying so high a voltage that contact therewith would have been extremely dangerous if not fatal. It was brought out in the testimony that defendant had written a number of letters to various property owners having antennae above their roofs warning them of the proximity of the high tension wires and of the possible danger of the antennae breaking or being blown over by a storm into contact with defendant's lines, and plaintiffs contend that defendant should have given similar notice to them after it knew or should have known of the location of their antenna. In that connection they attempted to show that one of defendant's meter readers, who incidentally was charged with the duty of reporting any construction that might be considered a hazard, actually or presumably saw plaintiffs' antenna a couple of weeks before the accident happened. Defendant denies this, but even if we were to assume that it did know, or should have known, of the existence of the aerial, was there any

[ 383 Pa. Page 335]

    duty upon it to give the warning claimed by plaintiffs? Being at a distance of some 22 feet from defendant's lines, the antenna was apparently well out of harm's way under all normal and likely conditions. What defendant might have been bound to take into consideration was the possibility that the antenna might, through some natural cause or agency, come into contact with their wires, but it was certainly not obliged to anticipate that human intervention, aided by the existence of a careless defective coupling, would bring about an accident such as that which happened.

All liability for negligence rests upon a reasonable duty to foresee the likelihood of the happening of an injury apt to result from one's act; there is no such duty to apprehend that an intervenor will, either wilfully or carelessly, bring about a result which would not have been occasioned by natural forces or ordinary events. Thus in Geroski v. Allegheny County Light Co., 247 Pa. 304, 93 A. 338, it was held that an electric company maintaining heavily charged wires 29 feet from the ground and 12 feet from a building could not reasonably be held to anticipate that the janitor of the building in attempting to hoist a flag on a pole by means of a copper wire would manipulate the wire from his position on the ground in such manner as to bring it in close proximity to the electric wires, thereby resulting in a shock causing his death. There are several cases cited in the opinion in that case of somewhat similar nature in which a defendant electric company was likewise exculpated from liability. In Mirnek v. West Penn Power Co., 279 Pa. 188, 123 A. 769, it was held ...


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