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October 5, 1956

WILLIAM A. JARVIS, Inc. and Philadelphia Electric Company. James LEBECK v. CRANE OPERATING COMPANY, Inc., Defendant and Cross-Defendant and Levitt and Sons, Inc., Defendant, Third-Party Plaintiff and Cross-Claimant (William A. Jarvis, Inc., Third-Party Defendants)

The opinion of the court was delivered by: DUSEN

These cases arise out of a tragic accident which took place on May 1, 1953, during the construction of a drainage ditch across the land of the Philadelphia Electric Company by William A. Jarvis, Inc., as general contractor for Levitt and Sons, Inc., which had been granted an easement over this land to construct such a ditch. Plaintiff's injuries resulted from a high voltage of electric current 1 passing through his body, as more fully discussed below under the heading 'Amount of Verdict.' After judgment in the amount of $ 350,000 was entered in favor of the plaintiff and against William A. Jarvis, Inc., Crane Operating Company, Inc., and Levitt and Sons, Inc., on the jury's answers to special questions *fn2" in accordance with F.R.Civ.P. 49(a), 28 U.S.C.A., several post-trial motions were filed which are now before the court for disposition.

The evidence, in the light most favorable to the plaintiff, establishes this factual situation:

 A. Under date of September 12, 1952, counsel for Levitt and Sons, Inc., wrote a letter to the Assistant General Counsel of Philadelphia Electric Company, proposing a settlement of 'various problems outstanding' between the two companies (P-1). Paragraph 5 of this letter contained the following language:

 'Electric will permit Levitt to construct drainage ditches not in excess of 70 feet wide through its Emilie Substation property, * * *.

 By letter of the same date (P-26), the Assistant General Counsel of Philadelphia Electric Company accepted the proposals in the above-mentioned letter from counsel for Levitt and Sons, Inc., and stated:

 'I am also authorized to inform you that your construction forces may commence work on the drainage ditches on our property at any time on and after September 15, 1952, provided, however, that notice of the time and place of the commencement of work is given in advance to Mr. William F. Roth, Division Superintendent, whose office is located at 1938 Wharton Road, Jenkintown, Pennsylvania.' *fn4"

 Mr. Ludlow, General Superintendent of construction of Levitt and Sons, Inc., was notified by the Legal or Engineering Department of his company in connection with this 3-C project: 'We completed our negotiations; notify them when you go in.' (N.T. 1108.)

 Levitt and Sons, Inc., entered into a contract with William A. Jarvis, Inc., dated March 3, 1953 (D-40), to which there was attached an addendum dated April 8, 1953, providing for construction by William A. Jarvis, Inc., of 'Main Drainage Ditch 3-C * * * to include three (3) culverts and three (3) check dams.' Mr. Roth testified that he never received any notice that work had begun on this drainage ditch, which was constructed in the vicinity of the Emilie Substation of the Philadelphia Electric Company. If he had received such notice, Mr. Roth testified that the wires would have been de-energized, an inspector put on the job, or the contractor required to do the job in a way that would not have necessitated either of the first two alternatives (N.T. 228). The accident took place during work on construction of the above-mentioned ditch 3-C at a point about 900 feet from the back of the Emilie Substation (see P-13), *fn5" which is located between the scene of the accident and Mill Creek Road, on which the Substation fronts.

 B. Plaintiff started to work for the Levittown Supply Company on July 7, 1952, as a pipe layer or pipe fitter. William A. Jarvis was President of, and controlled the stock of, Levittown Supply Company, Crane Operating Company, Inc., and William A. Jarvis, Inc., which companies participated in the development of the Levittown area of Bucks County, Pa., during 1952 and 1953. The practice of Mr. Jarvis, as chief executive of the companies, was to use the men employed by any of the companies on any project where their services were needed, even though such project was being constructed by another company. The company carrying the employee on the payroll would pay its employee, but such company would be reimbursed by the company to whom the employee was loaned. *fn6" William A. Jarvis, Inc., entered into a contract with Levitt and Sons, Inc., to construct a drainage ditch known as 3-C (D-40). *fn7" Employees of the above-mentioned three companies worked on this 3-C project and compensation of personnel on the payroll of Levittown Supply Company and Crane Operating Company, Inc. (including Mr. Yatsko, the crane operator) who worked on this project was charged to, and paid for by, William A. Jarvis, Inc. by those companies (D-1 and N.T. 966, 971, 809-11, 849, 850-1). Mr. Allen testified that he was acting as general supervisor of this 3-C project for William A. Jarvis, Inc., at the time of this accident, even though he was on the payroll of Crane Operating Company, Inc. (N.T. 738). He identified the daily work sheets (D-1) covering this project, and showing that plaintiff, Mr. Yatsko, and the other employees were working on it, which sheets he prepared and on the basis of which the employees were paid by the company on whose payroll they were carried. Plaintiff never consented to work for any company other than Levittown Supply Company and neither knew that he had been loaned to William A. Jarvis, Inc., nor did he consent to work for that company. Mr. Coyne, who was on the payroll of William A. Jarvis, Inc., was the local foreman on this 3-C project with the usual supervisory and control powers of a foreman over all the personnel, with the exception of plaintiff (N.T. 681, 1017, 1118).

 C. Work by plaintiff on this drainage ditch project started about two weeks prior to the accident. A crane with a shovel on the end had been digging out the ditch in which concrete pipe (5 or 6 feet in diameter) was laid. After a portion of the ditch had been dug by the crane, the bulldozer operator (Mr. Holliday) pushed the pieces of concrete pipe, which weighed 6 to 9 tons, down to the edge of the ditch with the bulldozer (P-128). Mr. Coyne and Mr. Weber hooked the crane cable (the shovel having been detached) through a hole in the center of the pipe to a bolt inside the pipe and told the crane operator (Mr. Yatsko) to raise the pipe with the crane and lower it into the ditch. Plaintiff's job was to see that the pipe was not broken and, with the help of the crane operator, fit each piece of pipe into the piece already laid, next to which it was to be placed. The Helmig brothers, and sometimes Mr. Galford, assisted plaintiff in getting each piece of pipe in position in the ditch. When the weight of the pipe was released from the boom of the crane as it was 'eased' to the ground, the top of the boom would always rise to 'some' extent, but the movement from the release of weight in this case would have been slight.

 D. The body of the crane was parallel to the ditch while the pieces of pipe were being put into the ditch (P-17). The treads supporting the body of the crane were on wooden pads (P-24, P-18) to prevent the treads from sinking into the soft, marshy ground. The body of the crane was 4 or 5 feet from the edge of the ditch. As part of the drainage ditch project, it was necessary to clear the ground of underbrush and trees, to do excavation, and also to build a spillway, *fn8" as well as to lay the pipe. During the two days immediately preceding the day of the accident, plaintiff had been working on the spillway by helping to put up forms into which the concrete was poured. *fn9"

 E. Since on May 1, 1953, the bulldozer broke down, Mr. Allen, the field boss, *fn10" came out to the scene of the work after lunch and plaintiff asked him about the overhead electric wires. Mr. Allen answered, 'Jim, they are off.' He said, 'You got to get them pipes in right because we can't keep the power off.' *fn11" In reliance upon this inaccurate statement of Mr. Allen made about 2 P.M., plaintiff went down in the ditch *fn12" and worked under the wires, which crossed the ditch at right angles. (Cf. P-6.) *fn13" The lowest of the three wires of the Philadelphia Electric Company (see footnote 1) was 44 feet 8 inches above the ground and the highest of these wires was 49 feet above the ground. The boom was set at such an angle that its top was about 10 feet below the lowest wire (N.T. 454-5, 1026-8) and the crane operator could only move the boom sideways in putting the piece of pipe in the ditch. Three pieces of pipe were successfully put in place in the ditch, parallel to each other, without incident prior to the accident. Immediately prior to the accident, plaintiff was standing in the ditch with the crane cab behind him and the boom *fn14" extending over his head out in front of him, lowering the fourth piece of pipe into the ditch. At first, plaintiff was giving directions to the crane operator with his hands and, when the piece of pipe was being pushed into place by him with a crowbar as it neared the ground, such directions were given by motions of plaintiff's head. *fn15" The Helmig brothers (one on each side of the piece of pipe, which was a couple of inches from the bottom of the ditch) were assisting plaintiff in pushing it in place. The end of this fourth piece of pipe was to fit into one of the three pieces which had already been placed in the ditch.

 F. Mr. Burriskey, Field Superintendent of Levitt and Sons, Inc., assigned to this 3-C project, testified that his duties were (1) to go out and check the line and grade of the ditch as given by his engineering department to see if the work was done as called for by the plans, and (2) to see whether enough progress had been made to warrant payment of requisitions by William A. Jarvis, Inc., for moneys claimed to be due for work done on the project. He did not exercise any supervision or control over the work on the project and had no authority over the workmen. However, he admitted that there could have been other employees of Levitt and Sons, Inc., in the field at the site of this project, such as engineers. Mr. Jarvis testified that Levitt and Sons, Inc., had daily inspections on the various jobs being done for them in the Levittown area.

 Mr. Ludlow, *fn17" General Superintendent of construction of Levitt & Sons, Inc., sent notice under date of 1/28/53 to all contractors doing work for his company, including William A. Jarvis, Inc., cautioning all equipment operators to be careful of all electric wires (DL-1 and DL-2). This notice was posted on the bulletin boards of William A. Jarvis, Inc., and their employees, other than plaintiff, were warned about the danger of such wires.

 Civil Action No. 16087

 This action was brought by plaintiff against William A. Jarvis, Inc., and Philadelphia Electric Company. *fn18"

 I. Motion of William A. Jarvis, Inc., for a New Trial and for Judgment in Accordance with Its Motion for a Directed Verdict

 A. Liability

 The area where this accident occurred and the instrumentalities, as well as the personnel using them, which conducted the electricity from the high tension wires to plaintiff's body were under the control of William A. Jarvis, Inc. (hereinafter called 'Jarvis'). This travel of electricity for over 44 feet from a high tension wire to a person standing in a ditch below the level of the surrounding ground does not, 'in the ordinary course of things,' happen if those who are managing the instrumentalities and the personnel using them exercise due care. Under such circumstances, the Pennsylvania courts hold that the jury may infer negligence on the part of Jarvis. See Shafer v. Lacock, 1895, 168 Pa. 497, 504, 32 A. 44, 29 L.R.A. 254; Knox v. Simmerman, 1930, 301 Pa. 1, 4, 151 A. 678; First National Bank of McKeesport v. Simko, 1956, 384 Pa. 603, 605, 122 A.2d 47. *fn19" This principle has been applied to injuries occurring during construction work. See Bisson v. John B. Kelly, Inc., 1934, 314 Pa. 99, 170 A. 139. It is particularly applicable in a situation such as this where this defendant knew the work was being done under high tension wires. See Ashby v. Philadelphia Electric Co., 1938, 328 Pa. 474, 478, 195 A. 887; Cooper v. Heintz Mfg. Co., 1956, 385 Pa. 296, 299, 304-305, 122 A.2d 699. *fn20"

 Although the testimony produced by Jarvis was strong evidence of the exercise of due care by its employees, 'the law does not require the elimination of every possible cause of the accident other than that on which plaintiff relies, but only such other causes, if any, as are fairly suggested by the evidence. (Citing cases.) Proofs to a degree of absolute certainty are rarely attainable; it is sufficient that they be such as to satisfy reasonable minds.' See Saganowich v. Hachikian, 1944, 348 Pa. 313, 317, 35 A.2d 343, 345. The fact that no electricity was transferred from the wires to the boom when the former three pieces of pipe were placed in the ditch parallel to each other is not conclusive, since the jury could well have found that the necessity of fitting this fourth piece of pipe into one of the first three pieces was a more difficult job than had been involved in placing each of the first three pieces beside each other. There was ample testimony that the release of the weight of the pipe made the boom rise to some extent and that the crane was located on such marshy ground that pads were required for its support. Although it is a close case, I believe the jury was entitled to infer negligence which was the proximate cause of the injuries on the basis of the record. *fn21"

 Furthermore, the plaintiff testified that he only performed this work under the high tension wires in reliance on Mr. Allen's inaccurate statement (see 145 F.Supp. at page 713, supra) that the current was off. The finding of liability on the part of Jarvis can be supported by such misrepresentation subjecting plaintiff to an unreasonable risk of bodily harm, irrespective of the legal principles stated in the two preceding paragraphs. See Robb v. Gylock Corp., 1956, 384 Pa. 209, 120 A.2d 174. *fn22"

 B. Amount of Verdict

 In this suit based on diversity of citizenship, the legal rules followed by the Pennsylvania courts and by federal courts applying the Pennsylvania law must control in passing on the claim that the verdict is excessive. *fn23" See Coca-Cola Co. v. Dixi-Cola Laboratories, 4 Cir., 1946, 155 F.2d 59, 67, certiorari denied 1946, 329 U.S. 773, 67 S. Ct. 192, 91 L. Ed. 665.

 In addition to the plaintiff's past expenses and past loss of earnings totaling $ 31,500, his future loss of earning power which can be estimated at $ 112,000, *fn24" and his estimated future nursing, medical and related expenses of approximately $ 50,000 *fn25" the Pennsylvania appellate courts *fn26" hold that plaintiff is entitled to these items:

 1. Adequate compensation for the permanent loss or impairment of limbs, organs, nerves, and other parts of the body;

 2. Adequate compensation for past and future mental suffering resulting from physical injuries; and

 3. Adequate compensation for past and future pain, suffering, humiliation and inconvenience ...

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