Appeals, Nos. 203, 204, 205, 215, 216, March T., 1957, from judgment and orders of Court of Common Pleas of Allegheny County, April T., 1952, No. 2857, in case of Louis Super, Administrator of Estate of George L. Super, deceased v. West Penn Power Company and Murrysville Telephone Company. Order granting new trial reversed; judgment as to other defendant affirmed.
William A. Challener, Jr., for West Penn Power Company, defendant.
J. Lee Miller, with him Harvey A. Miller, for Louis Super, plaintiff.
William J. Lancaster, for defendant Murrysville Telephone Company.
Before Jones, C.j., Bell, Chidsey, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
After a verdict in favor of both defendants in this trespass action, the court below granted a new trial as to one defendant and refused a new trial and entered judgment upon the verdict in favor of the other defendant. From this order and judgment these appeals were taken.
George L. Super, whose death gave rise to this litigation, was employed by Armstrong County Lines Construction Company (herein called Construction Company) as a lineman. In May 1951 the Construction Company was engaged in the construction of a new telephone line for the Murrysville Telephone Company (herein called Telephone Company) along a public highway known as the Murrysville-Sardis highway in Westmoreland County.
The particular area of that construction pertinent to this litigation was a section approximately three-quarters
of a mile in length running along the Murrys-ville-Sardis highway in a northerly direction beginning at a point where that highway is intersected by another public highway known as the Mamont road. At this intersection was a telephone pole owned by the Peoples Natural Gas Company (herein called Gas Company) known as Pole 1/103 which was also used by the West Penn Power Company (herein called Power Company) for carrying its power lines. From this pole the newly constructed telephone line, placed on poles of the Telephone Company, ran in a northerly direction along the easterly side of the Murrysville-Sardis highway; the line then crossed to the westerly side of the aforesaid highway. The telephone line then continued in a northerly direction to a Power Company pole known as Pole 1/117 where the telephone wires were wrapped around a cross-arm attached to that pole. On the westerly side of the highway the new telephone line was installed both on five (5) Power Company poles as well as on four (4) new poles installed for the Telephone Company by the Construction Company. On the westerly side of the highway the high tension wires of the Power Company were installed on its poles above the telephone wires.
By May 9, 1951 both wires and poles had been strung and erected. On that date the decedent had started to climb Pole 1/103 - the Gas Company pole - to assist another workman when he was electrocuted by reason of the fact that a high tension wire of the Power Company had dropped on a telephone wire at the Power Company's Pole 1/117, transmitting a bolt of electricity down the line to the pole upon which decedent was climbing.
The decedent's father, on behalf of decedent's estate and as surviving parent, instituted a trespass action against the Power Company and the Telephone
Company to recover damages arising from the decedent's death. At the first trial of this action the jury awarded plaintiff a verdict against both defendants in the amount of $20,000. A new trial was granted on the ground that the verdict had not been apportioned between the wrongful death and the survival actions. At the second trial of this action the jury returned a verdict in favor of both defendants. The court granted a new trial as to the Power Company and refused a new trial and entered judgment on the verdict in favor of the Telephone Company. We will consider the action of the court in both respects.
The sole basis for the grant of a new trial as to the Power Company was stated by the court below: "There-fore, it was necessary that the Court instruct the jury as to the duty of the Power Company as to licensees, as well as to its duty to decedent while he was lawfully on the pole of the Peoples Natural Gas Company. In this there was prejudicial error, which requires the granting of a new trial as to the Power Company."
An examination of the charge indicates that the court pointed out to the jury that decedent "was at the time upon a pole owned by a third company ...", adequately quately explained the duty of the Power Company to exercise the highest degree of care "to avoid injury to anyone who may lawfully [be] in proximity of its wires and who may come into contact with them accidentally or otherwise" and that "if the pole as maintained by the [Power Company] was safe in its position and its fittings and lines, ... the fact that some other persons did some act which impaired the safety of that pole or its functioning, then the [Power Company] breached no duty to the plaintiff". The court then charged: "The defendants say that they gave no consent to the placing of these wires on their poles, and there is no testimony that their consent was given. If
such were the case - and there is no denial - then if these wires were placed upon that particular pole, the person who placed them there or directed them to be placed there would be trespassing upon property. A power company is not obliged to protect and guard its poles in a transmission line against trespassers. If they keep their lines and facilities in proper condition according to the highest standard of care, and a trespasser disturbs that property, they would not be liable unless they had known or had reason to believe that trespassers had impaired the safety of their poles and facilities and had failed to do some act to correct it. But they were not bound to anticipate that a trespasser would do any act with respect to that pole, nor were they obliged to inspect it from time to time to see whether any trespasser had impaired the safety of the pole and its equipment. Their duty would only arise when they had knowledge that a trespasser had done some act which affected the safety of the pole and had failed to do some act to correct it.
"That is the point which you will have to determine when you come to deliberate upon the liability of the West Penn Power Company, if any."
For a more complete understanding of this charge a brief review of the factual background as presented of record is necessary. In connection with the construction of the telephone line on the westerly side of the highway, the Construction Company utilized two sets of poles: five (5) poles of the Power Company which were already in place and use and four (4) poles which the Construction Company placed in between the Power Company's poles. The construction work required that not only wires but cross-arms be placed on the Power ...