Appeal, No. 34, March T., 1961, from judgment of Court of Common Pleas of York County, Jan. T., 1958, No. 157, in case of Dewey W. James, trading and doing business as Hanover Diner, v. United Telephone Company et al. Judgment affirmed.
William W. Hafer, for appellant.
Robert J. Stewart, with him Anderson, Ports, May, Beers, Blakey & Stewart, for appellees.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 195 Pa. Super. Page 513]
OPINION BY MONTGOMERY, J.
This is an appeal by United Telephone Company from the refusal of the court below to grant its motions for judgment n.o.v. and for a new trial. A complaint in trespass was filed by Dewey W. James, trading as Hanover Diner, against Wilson Freight Forwarding Company and appellant to recover property damages resulting from an accident in which a truck of Wilson Freight Forwarding Company collided with a transmission cable of appellant, causing damage to an electrical neon sign of the diner.
Dewey W. James, appellee, operated a business establishment known as Hanover Diner located approximately two miles north of the center of the Borough of Hanover, York County, on the easterly side of Pennsylvania Legislative Route No. 94. The diner and a parking area located in the front and sides of the diner were constructed during the period of July 1, 1957 to September 4, 1957. During the construction, appellee filled and raised the elevation of the land on which these facilities were built by approximately two to five feet so as to make these facilities level with the highway. A line of telephone poles carrying a cable of appellant ran along the highway on the same side as
[ 195 Pa. Super. Page 514]
appellee's property. This line was owned and maintained by appellant telephone company.
During the construction of the diner, appellee had erected the electrical sign a few feet from the telephone cable and about four feet away from one of the poles that supported the cable. There was no evidence as to the hight of the sign and the only evidence as to the height of the cable after the fill is an estimate of twelve feet six inches at its lowest point made by the engineering department of the appellant.
On or about August 23, 1957 and prior to the time that the diner was to be opened to the public for business, the telephone company was requested to raise the cable because of the possibility of danger to some vehicle coming in contact with it upon entering the appellee's property. Later, when appellee made application for an extension telephone, the company was again notified of the low cable and requested to raise it.
According to the appellant's testimony, on September 4, the district manager of the telephone company verbally ordered the central office repairman to have someone check the height of the cable; on September 6, the job was given a project ...