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STARK v. LEHIGH FOUNDRIES (03/18/57)

March 18, 1957

STARK
v.
LEHIGH FOUNDRIES, INC., APPELLANT, ET AL.



Appeals, Nos. 97 and 108, Jan. T., 1957, from judgments of Court of Common Pleas of Northampton County, April T., 1954, No. 160, in case of Robert F. Stark v. Lehigh Foundries Incorporated et al. Judgments affirmed.

COUNSEL

Thomas R. White, Jr., with him A. Albert Gross, Gross & Herster and White, Williams & Scott, for Lehigh Foundries, Inc., defendant, appellant.

John B. O'Brien, with him John H. Cericola, for plaintiff, appellee.

Edward J. Fox, Jr., with him Fox & Oldt, for Metropolitan Edison Company, defendant, appellee.

J. Douglas Fackenthal and Fackenthal, Teel, McGiffert & Danser, for additional defendant, appellee.

Before Jones C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.

[ 388 Pa. Page 4]

OPINION PER CURIAM

We are in accord with the determination of this action in trespass by the court en banc of Northampton County and the judgments entered in favor of Robert F. Stark against Lehigh Foundries, Inc. and in favor of the Metropolitan Edison Company are affirmed on the following portions of the extremely able opinion of President Judge BARTHOLD:

"Robert F. Stark brought this action in trespass against Lehigh Foundries, Inc., Metropolitan Edison Company and Collins & Maxwell, Inc., to recover damages for permanent injuries sustained by him while engaged in the performance of his duties as a helper about a crane which suddenly became electrified by a about a crane which suddenly became electrified by a 1953.

"Lehigh Foundries, Inc., was the owner and occupier of an industrial plant and railroad siding. The power lines of Metropolitan Edison Company ran above and across the railroad siding to a transformer station also owned by Lehigh Foundries, Inc. Lehigh Foundries, Inc., from time to time required long boom cranes to unload tubing from railroad cars on its siding. Collins & Maxwell, Inc. usually supplied the cranes, but when cranes of its own were not available it arranged with another contractor to supply the necessary crane. In the instant case the crane was furnished by John Frank Posh, trading as Posh Construction, together with an operator, Mark (Marlin) Engler, and a helper, Robert F. Stark, plaintiff herein.

"Metropolitan Edison Company joined as additional defendants, John Frank Posh, trading as Posh Construction, and Mark Engler.*fn1

[ 388 Pa. Page 5]

"The jury returned a general verdict for plaintiff in the sum of $111,103.42 against Lehigh, Metropolitan and Posh. Supplementary thereto the jury made special findings adjudging Lehigh, Metropolitan and Posh guilty of negligence, and absolving Engler from negligence, and plaintiff from contributory negligence.

"Defendant, Collins & Maxwell, Inc., had been eliminated as a defendant by direction of the Court.

"Lehigh, Metropolitan, and Posh filed motions for judgment n.o.v. and for a new trial. These motions are now before the Court.

"Lehigh's motion for judgment n.o.v. raises two questions: (1) was there sufficient evidence of Lehigh's negligence to submit to the jury? (2) If so, was Lehigh's negligence a proximate cause of the injury?

"Considering all the evidence and all reasonable inferences therefrom in the light most favorable to plaintiff, as we are required to do in considering motions for judgment non obstante veredicto,*fn2 the following facts must be taken as established:

"Lehigh owned and occupied an industrial plant and railroad siding. Metropolitan's power lines ran above and across Lehigh's railroad siding to a transformer station also owned by Lehigh. The current (34,500 volts) was delivered to Lehigh's transformer station and was thereafter utilized by Lehigh. The power lines were erected, maintained and inspected by Metropolitan.

"On the day of the accident, May 13, 1953, and on the previous day, Posh supplied Lehigh with a long

[ 388 Pa. Page 6]

    boom crane, a crane operator and a helper to unload tubing from railroad cars on Lehigh's siding. Engler was the crane operator and plaintiff was his helper. On the day of the accident, Lehigh's foreman spotted the railroad cars immediately underneath Metropolitan's power lines and directed Engler where the work was to be done. Four of Legigh's employees assisted in the unloading operation. The work proceeded under the direction of Lehigh's foreman who was there when the work began and at intervals during the day until the work was completed, when Lehigh's foreman and employees left the railroad siding. Engler and plaintiff then began knocking out the stabilizing blocks underneath the crane preparatory to moving the crane from Lehigh's premises. While plaintiff was on the ground alongside the crane in the act of placing a sledge hammer in the tool box of the crane the 40-foot boom of the crane operated by Engler came in close proximity to Metropolitan's power lines above the unloading area causing the current carried in one of the power lines to arc from the line to the boom of the crane. The current passed through the crane and into plaintiff's body causing serious injury. On the previous day a similar unloading operation took place on Lehigh's premises but the work was done in a safe place some distance away from Metropolitan's power lines. On the day of the accident there was no need to conduct the work immediately underneath Metropolitan's power lines. There was ample room elsewhere on the railroad siding to unload cars a safe distance from the power lines.

"Plaintiff, while aware of the presence of the power lines, was not aware of the high voltage carried through them, nor was he aware of the danger of arcing. The power lines were 24 feet or more above the ground and

[ 388 Pa. Page 7]

    it was impossible to determine from the ground whether or not they were insulated. The president of Lehigh so testified.

"Posh had furnished mobile cranes to Lehigh on many previous occasions for use in unloading cars on Lehigh's railroad siding. He had been on the premises and knew of the existence of the power lines over the railroad siding. Although he knew of the danger of arcing, he did not notify plaintiff or Engler of this hazard and did not equip crane with a protective grounding device, in accordance with accepted general safety practice in the business and as mandatorily required under the 'Rules for Cranes and Hoists' promulgated by the Department of Labor and Industry of the Commonwealth of Pennsylvania pursuant to statute.

"Lehigh had actual knowledge of the danger involved. Lehigh's president testified that he knew that cranes were operated from time to time in the vicinity of the power lines; that he knew of the high voltage carried in the lines; and that he knew also of the phenomena of arcing. In spite of this knowledge, no warning of the danger was given to Lehigh's foreman or its employees or to Posh and his employees, Stark and Engler. It is admitted of record that Lehigh did not notify Posh that the work was to be performed immediately underneath the power lines.

"It is contended by Lehigh that, 'there was no latent or hidden defect or dangerous condition but rather an obvious condition which was apparent to anyone coming upon the premises,' and that 'there is nothing showing ..., that Lehigh Foundries had any knowledge of arcing, flaring or discharge (short of contact of the crane boom with the wire) which was superior to that of Engler or Stark,' and that therefore the evidence was insufficient to establish negligence on the part of Lehigh.

[ 388 Pa. Page 8]

"We must reject both arguments as of little force. Our ruling, we think, is in harmony with well established legal principles.

"'The duty of a possessor of premises toward a business invitee is an affirmative one, viz., to keep the premises in a reasonably safe condition or warn of dangers thereon which the occupier knows or should know exist: ... There is no duty, however, upon the possessor of land to warn or guard a business invitee against a danger that is obvious:' McCreery v. Westmoreland Farm Bureau Co-operative Association, 367 Pa. 567, 570; Walker v. Broad and ...


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