As to 2-8, there is some evidence from which a fact finder could infer that the decedent may have known, or should have known, some of the facts stated in these requests. The decedent was an experienced crane operator, with no impairment of vision, who knew his brother was going to move the Michigan truck crane to Bridgeport promptly and he should have observed where his brother was going to move the crane and boom or stayed many feet from it, since he had no duties requiring him to remain near the crane.
9, 11, 14, 24, and 31 would be affirmed.
15-23 and 25-30 would be denied. Many of these requests are based on the foreman's testimony and the fact finder is not bound to accept this testimony in view of the references to the record in Exhibit A and in the foregoing Memorandum Opinion.
There are also attached letters from counsel dated March 8 and 12, 1963, submitting additional authorities.
AND NOW, March 21, 1963, IT IS ORDERED that the following Motions of plaintiff are DENIED:
(a) MOTION FOR NEW TRIAL UNDER RULE 59 (Document 76); and
(b) MOTION FOR ADDITIONAL FINDINGS UNDER RULE 52 AND TO ALTER OR AMEND JUDGMENT (Document 77).
CREDIBILITY OF WITNESSES
James Wilson, Jr.
The trial judge was justified in accepting the portions of this witness' testimony referred to at page 2 of the Opinion of July 13, 1962 (Document No. 71) in view of this record, which includes these items among others:
1. The witness' testimony that he could remember the events surrounding the accident because of the dramatic and shocking death involved (N.T. 909) could well have been very persuasive to the fact finder.
The inability of the witness to remember the exact time
of the incident when the decedent warned his brother, due to the ball of flame which appeared on the wire near the boom (N.T. 929), does not mean that he could not remember the incident itself. The sentence in PE-10 that the witness did not see any flames or sparks when the boom was as close as two or three feet to the lowest wire (N.T. 923) is not necessarily inconsistent with the witness having seen an are of flame the size of a ball when the boom was closer than two feet to that wire. It is not an uncommon experience for a witness to sign a statement that does not include all he knows about an incident, particularly when the statement is accurate as to the points it does include. Also, the witness had signed a statement (G-2) on the ball of flame incident prior to the accident (see 3 below) which was produced at the request of counsel for plaintiff (N.T. 871).
2. Plaintiff's witness, Gettis, testified that there were six or seven fellow workers of the decedent in the area other than the crane operators on the afternoon of the accident (N.T. 2489). Also, the witness was cross-examined about the soldiers stationed at this Nike Missile Site who were playing volley ball with him on the afternoon of the accident, September 25, 1957, (N.T. 879 & 948) and indicated the names of three or four of them who were playing volley ball on that afternoon (N.T. 879 & 948). He could not remember whether or not four others were playing volley ball (N.T. 948). The fact finder was entitled to take into consideration the failure of plaintiff to call any of these witnesses (particularly the three named at N.T. 879), who had opportunities to observe the ball of flame incident, in rebuttal of Wilson's testimony, particularly since Wilson testified on May 29 and evidence was presented as late as July 9.
The fact finder was entitled to find that the testimony of the foreman that he did not see any such ball of fire was not persuasive, since Mr. Gettis was busily engaged from time to time at various places over an area 100 feet by 20 feet, including supervising the workers with jackhammers in the ditch where the noise from such jackhammers would have drowned out any popping sound
and where the foreman would have been looking down and not at the overhead wires. This testimony of the foreman was, at the most, negative testimony because his duties restricted his opportunities to observe whether or not this incident happened. See Enfield v. Stout, 400 Pa. 6, 13, 161 A.2d 22 (1960). The positive testimony of Wilson is stronger and is entitled to greater weight than such negative testimony. See Window Glass Mach. Co. v. Pittsburgh Plate Glass Co., 46 F.2d 484, 494 (W.D.Pa.1921), aff'd. 284 F. 645 (3rd Cir. 1922), cert. den. 261 U.S. 623, 43 S. Ct. 518, 67 L. Ed. 832 (1923); Rapp v. Central R.R. of Pa., 269 Pa. 266, 270, 112 A. 440 (1921).
Since Mr. Burns testified on cross-examination that he arrived at the accident site 'a little after two' and left the area 'about 20 minutes or more' later but the accident occurred 'a matter of 15 minutes' after he left (N.T. 811), his memory of these times could not all be correct in view of the occurrence of the accident at 3:05. The fact finder was justified in finding that this 'ball of flame' incident occurred when Mr. Bruns was not present and, hence, that he did not have the opportunity to observe it. It is significant that the foreman testified that he did not see Mr. Bruns prior to the accident (N.T. 2454) so that Mr. Bruns could not have been at the accident site very long, and Mr. Gettis could not have been observing all parts of the site every minute.
3. The witness gave a prior consonant statement to the F.B.I., stating (page 1 of G-2):
'* * * while I was engaged in the game of volleyball, I heard a loud noise. When I looked up, I saw the boom of this truck-crane sparking on an overhead wire. I recall that apparently the Morello brother who was the superintendent also saw this boom sparking on the overhead wire, because he walked over to the ditch and the crane, and pointed to the wire, as if warning the crane operator to be careful of the overhead wire. The Morello brother who walked over to the crane was the same person who was later killed. * * *' (Statement goes on to describe the later fatal accident.)
He explained the inaccurate part of that statement which mentioned a 15-minute period between the incident and the accident as resulting from his desire to terminate the interview with the F.B.I. agent since 'he was eating up my lunch hour' (N.T. 954).
4. The electrical expert with the greatest background knowledge of this accident (Mr. Van Name) did not testify, as stated by plaintiff at page 22 of plaintiff's brief, that there would be a tripping of the line at the Philadelphia Electric substation if there was an arc alone, but that there would have to be an arc and grounding for such tripping to take place (N.T. 260-2). At the time Wilson saw the ball of fire, there may well have been no grounding because the rubber tires provided a degree of insulation (N.T. 310). The fact that grounding occurred at the time of the fatal accident, when there was actual contact for several seconds between the boom and the overhead wire, does not mean that there would necessarily be grounding when there was an arc of very short duration without any such contact. Mr. Lerner (who was not a very convincing witness) did not have sufficient knowledge of the Philadelphia Electric Company equipment to make his views on tripping have anything but minimal weight, which the fact finder was entitled to reject.
The discussion of the reasons for the admissibility of Jackson's testimony, as well as parts of the record which are not referred to in that discussion, disclose that the fact finder was justified in considering these factors, among others, in deciding to accept the basic testimony of this witness, including his testimony that the decedent was leaning against the wheel of the crane:
1. Jackson gave straightforward testimony of the events immediately before and after the accident which was fully consistent with the basic facts in the record, in spite of lengthy cross-examination by counsel for plaintiff covering over 100 pages (N.T. 2889-2903, 2911-2974, 2978-9, 3002-3025) after a direct examination which covers 11 pages of the record (N.T. 2876-2887).
2. Although this witness gave one statement (PE-17)
which did not mention that the decedent was leaning against the wheel of the crane, he gave at least one other prior statement (G-8A) consonant with his statement at the trial containing this language:
'JACKSON stated that at approximately 2:30 p.m. he heard a loud explosion or something similar to that and he turned around to see PETE MORELLO badly burned. MORELLO was half sitting against a crane being operated by his brother whose name he did not recall. They were preparing to move the crane back to their storage yard for another project the next day. He believes that the top of the crane was approximately 12 feet from the high tension wires overhead when apparently an arc was formed between the crane and the high wires. PETE MORELLO was immediately killed and turned black all over. They tried to revive him but it was too late. His brother who was operating the crane was right there but there was nothing anyone could do.'
As pointed out above at page 27, since plaintiff did not confront Jackson with his statement, the fact finder may well have inferred that this statement was also consistent with the testimony Jackson had given at the trial.
J. B. Gettis, Jr.
The trial judge was justified in rejecting parts of the testimony of this witness, such as that he saw the decedent two or more feet from the crane as he was 'bowled over' from the results of the contact between the crane and the electric transmission wire and his opinion as to the next indicated move of the crane (N.T. 723-4), in view of these, among other, parts of the record:
1. The day after the accident, this witness had signed a statement (W-4) saying that the decedent 'was apparently touching the crane at the time it touched the wire.' Although Mr. Gettis denied that this was correct when he was being cross-examined, after having been called as a witness for plaintiff at the trial (N.T. 2482 ff. and 2544), he conceded that he had signed the statement (N.T. 2480) and read it before he signed it (N.T. 2543),
and that his recollected of the events surrounding the accident would have been 'much better' at the end of September 1957 than four years later (N.T. 2534). The reasons for accepting the contrary testimony of H. Jackson as to the location of the decedent at the time of the accident are stated under the discussion as to Jackson above.
2. The fact finder was clearly justified in finding that this witness was inaccurate in testifying that he was the first one to get to the decedent after his clothes had been burned and what W. Morello was still on the crane at that time (N.T. 2465), in view of the more probable testimony of Jackson that the decedent's brother first came to his aid (N.T. 2879 and 2956). Also, the fact finder was justified in accepting Jackson's testimony that he got to the decedent before Mr. Gettis (N.T. 2879 and 2956-7).
3. Other inconsistencies between this witness' statements given in the fall of 1957 (W-4, PE-13A-1 and D of M-5) and his testimony at the trial -- e.g., N.T. 2534-6 and 2540-1 (testified that decedent 'curled up on ground' as in D of M-5 is not accurate).
4. The witness exhibited hostility to counsel for Morellos which he openly expressed at the end of his cross-examination when called for the second time on behalf of plaintiff, due to a misunderstanding on his part that such counsel had made derogatory remarks about his brother (N.T. 2632-3).