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STIMMEL v. KERR (01/05/59)

January 5, 1959

STIMMEL
v.
KERR, APPELLANT.



Appeals, Nos. 136 and 137, March T., 1958, from order of Court of Common Pleas of Allegheny County, Oct. T., 1954, Nos. 3296 and 3297, in cases of Ada May Stimmel, administratrix of the estate of Herbert George Bails, deceased v. William E. Kerr et al., and Florence P. Carberry, administratrix of the estate of Oscar Engene Carberry, deceased v. Same. Order affirmed; reargument refused February 19, 1959.

COUNSEL

Harold R. Schmidt, with him William M. Gardner, and Rose, Rose and Houston, for appellant.

Robert B. Ivory, with him Evans, Ivory & Evans, for appellees.

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

Author: Cohen

[ 394 Pa. Page 610]

OPINION BY MR. JUSTICE COHEN.

The appellant, one of the defendants in a trial arising out of two actions of trespass to recover damages for the deaths by electrocution of two decedents, appeals

[ 394 Pa. Page 611]

    from the lower court's order granting a new trial limited to him, after verdicts were rendered for him and the West Penn Power Company.

The facts surrounding the accident reveal that both decedents, employes of a rigging and hauling contractor, were assigned to deliver steel trusses to the farm of defendant Kerr. After being instructed by Kerr's agent where the steel trusses were to be placed, the decedents proceeded to unload the trusses by means of an A-frame. The two decedents backed into the field in a stooped position. The truck containing the A-frame (which suspended the steel truss one foot above the ground) was also being driven backwards in the field. The A-frame contacted the transmission wires maintained on a West Penn Power Company right-of-way fatally electrocuting both decedents.

This instruction was submitted by defendant Kerr and read to the jury by the court: "If you believe... [decedents] could have seen the wires or poles if they had looked, then your verdict must be for the defendant, Kerr, and for the defendant, the West Penn Power Company."

The import of the court's charge was tantamount to a directed verdict and clearly indicated that the mere presence of the wires or the poles was sufficient warning to place the decedents on notice of the danger and completely relieve the landowner of liability. We have consistently held that the duty incumbent on a possessor of land as to a business visitor is to keep the premises reasonably safe or to warn of dangers existing thereon which the occupier knows or should know exists. However, this affirmative duty is not required of a possessor of land if the danger to be warned ...


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