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March 21, 1963

Carolyn D. MOORE, Administratrix of the Estate of Phillip P. Morello, Deceased, Plaintiff,
UNITED STATES of America, Defendant and Third-Party Plaintiff, v. Jay ASTER, Individually and T/A Wingate Construction Company, Third-Party Defendant, Cross-Claimant and Cross-Claim Defendant, and Philadelphia Electric Company, Third-Party Defendant, Cross-Claimant and Cross-Claim Defendant, and Russell W. Morello and Anthony Morello, Individually and as Partners T/A Russell W. Morello Excavating and Paving Contractor, Third-Party Defendant, Cross-Claimant and Cross-Claim Defendant

The opinion of the court was delivered by: DUSEN

This case is now before the court on post-trial motions *fn1" of the parties following a finding for the defendant *fn2" by the trial judge in this personal injury action brought under the Federal Tort Claims Act, 28 U.S.C.A. § 2674. There is substantial evidence in the record to have justified the fact finder's accepting this factual situation:

The accident occurred on September 25, 1957, when plaintiff's decedent, Phillip P. Morello, was fatally electrocuted on land, comprising a Nike Missile Site, owned by the defendant United States of America and located near Potshop and Church (Berks) Roads in Worcester Township, Montgomery County, Pa. (N.T. 53). In September 1957, the decedent had been employed for over ten years (N.T. 1625) by the Morello concern (a third-party defendant), which was digging a ditch (labeled 'Gravity Outfall on Sewer Line,' on P-5 and P-5A) on defendant's property along a line in general intersecting at a right angle with an existing overhead transmission line of the Philadelphia Electric Company. This transmission line consisted of wires with no insulated covering on them (N.T. 54). In the course of the excavation work, the Morello Company used a mobile crane (with clam shell or bucket) to excavate the ditch along the line which intersected the overhead transmission line referred to above.

 On September 25, 1957, at approximately 3:05 P.M., plaintiff's decedent was on the ground in the vicinity of the crane, whose operator was John William Morello (hereinafter called 'W. Morello'), also a Morello employee. Generally speaking, the overhead transmission line of Philadelphia Electric ran east and west, and the line of the ditch was approximately north and south. The boom of the crane operated by W. Morello came into such proximity to the lowest overhead transmission wire that, as a result, a current of electricity passed down the boom of the crane and thence to plaintiff's decedent, who was pronounced dead on arrival at Montgomery Hospital, Norristown, Pa. (N.T. 55-56).

 The above-mentioned crane had been at this site since September 20, 1957, working off and on in the digging of the ditch (N.T. 80-82). The distance from the boom hinge to the end of the boom was approximately 25 1/2 feet and the boom hinge was approximately 5 feet above the ground. The lowest transmission wire was approximately 26 1/2 feet above the ground at the point near the ditch where strands of it were broken and scraped by contact with the crane boom on September 25, 1957 *fn3" (see P-6A to P-6D, inclusive, P-10, P-12, P-13 and P-14). This wire carried 69,000 volts phase to phase and 40,000 volts phase to ground.

 The decedent was a 32-year old crane operator in heavy construction work in September 1957 (N.T. 663, 670). He was an experienced crane operator (N.T. 1625) who had held this position at least since April 22, 1951 (N.T. 650 and 670). His qualifications as a crane operator were 'the best' (N.T. 708). *fn4" On the morning of September 25, 1957, the decedent was instructed by the foreman, who believed there was power in the transmission lines (N.T. 697), to assist him in having W. Morello position the boom at a point where it was 15 to 18 feet above the ground (N.T. 711), *fn5" and W. Morello was told not to raise the boom any higher than this for the rest of the day (N.T. 704). Both W. Morello and the decedent were instructed that there was 'power' in the transmission lines (N.T. 699-703). *fn6" All employees were instructed to keep away from this crane assigned to W. Morello while it was operating or they would be fired on the spot (N.T. 704-6). *fn7" However, it was possible for W. Morello to raise the boom higher than this position 15 to 18 feet above the ground (N.T. 715) and, within two hours prior to the accident, W. Morello did raise the boom until it was sufficiently close to one of the overhead high tension wires (within four inches) that a small ball of fire (about the size of a volley ball or basketball) was formed and disappeared on the wires above the crane boom (N.T. 839, 850-1). At that time, the decedent warned W. Morello of the danger from the overhead wires (N.T. 839, 843).

 R. Morello, the senior member of the Morello concern at the site on the early afternoon of September 25, 1957, came to the location of the crane assigned to W. Morello between 2:15 and 2:45 P.M. on the afternoon of September 25. He and the foreman authorized W. Morello to take his crane back to Bridgeport early that afternoon so that he could get through Norristown before the heavy traffic (N.T. 716, 718-9, 737-8). For a period of 15 minutes after R. Morello came to the site, W. Morello did not operate his crane (N.T. 716, 738). An undisclosed time after R. Morello left, W. Morello, the foreman, and the decedent, standing three or four feet to the rear of the crane, had a conversation during which it was suggested that W. Morello was the 'pampered pet' because he was permitted to leave work early to go bowling (N.T. 707, 719). The foreman then left W. Morello and the decedent and crossed to the east side of the ditch in order to determine if one of the jackhammers was being used improperly (N.T. 719). After the foreman left, the decedent squatted near the ground, leaning against the tire of the rear wheel on the east side of the crane, and chatted with at least one of the ditch laborers as he passed (N.T. 2878, 2881 and 2882).

 The crane operator, W. Morello, entered the house from which the boom is operated *fn8" (as opposed to the cab where the controls are located which move the wheels of the crane -- N.T. 740-1, 1493, P-6C and P-8-9) and raised and swung the boom from the rear of the crane (where it was extending south, with the bucket on the ground where there was a spoil pile -- N.T. 736, 741) toward the front of the crane (north) in order to place the bucket in the cradle (on the front of the chassis) in which it was normally stored when the crane was traveling (N.T. 195, 275-9, 298, 1514, P-8 and P-9). During this movement, the crane boom touched the lowest wire of the transmission lines. This occurred at least a minute after the foreman left the decedent and W. Morello (N.T. 707 and 2784 ff.). The electric current passed from the wire through the boom of the crane and thence to the decedent, who, being within four inches of the crane near its right rear wheel, *fn9" was fatally electrocuted by such current.

 The foregoing summary of the evidence provides ample support for the findings of the trial judge dated July 13, 1962 (Document 71). Comments on the testimony of certain witnesses discussed in plaintiff's brief have been placed in Exhibit A to this Memorandum Opinion in view of the length of the record in this case.

 A. The findings of the trial judge were in accordance with the evidence and the law.

 Since the plaintiff's brief (pp. 26-31) particularly challenges the action of the trial judge in rejecting these requests for findings of fact submitted by plaintiff (Document 66), the following comments on them may be helpful:

 14. This record has ample justification for a finding that defendant, through Mr. Bruns, repeatedly warned the decedent's employer of the danger incident to operation of cranes under these wires and the foreman of such employer warned the decedent of the danger created by the proximity of the crane to the wires on the very morning of the accident (see pp. 292, 293, above). The fact finder was fully justified in rejecting a finding that 'defendant failed to give any adequate and specific warning * * *'. (emphasis supplied).

 24. The references to the record at pp. 5 & 7 above justified the fact finder in finding that the crane operators were warned that there was 'power' in the lines, the booms of the cranes should not be raised more than 15 to 18 feet above the ground, and it was dangerous for the booms to be within six feet of the overhead wires (N.T. 699-704, 711).

 26. As pointed out in Exhibit A, the testimony of Gettis and Bruns is not consistent, so that the fact finder's mind could well have been in equilibrium or affirmatively not persuaded that this statement was more probable than not.

 27. The evidence that Bruns was at the rear of, and within 10 feet of, the crane within a period of approximately 15 minutes before the accident is not persuasive, so that the rest of this request need not be discussed. *fn10"

 28. If the word 'some' had been placed before 'men,' this request would undoubtedly have had more chance of acceptance. It is clear that some of the men working in the ditch were more than 10 feet from the crane (N.T. 2538, 2908, 2957). However, even with this change in the request, there is doubt as to how close the men working in the ditch nearest to the crane were to the crane. The fact finder may well have accepted Jackson's testimony that Mr. Gettis was 15 feet from the crane at the time of the accident and rejected the testimony of Mr. Gettis indicating that men were within 10 feet of the crane at the time of the accident. Jackson testified that the men were as far from the crane as counsel for plaintiff's chair at the counsel table in Court Room 1 is from the witness chair (N.T. 2953), which distance is over 17 feet.

 29 & 30. There is substantial evidence to support a finding by the fact finder that the decedent, having seen W. Morello raise the boom to within a few inches of the overhead wire within two hours of the accident, knowing that he was in a hurry to get his mobile crane back to Bridgeport, *fn11" and knowing that the boom had to be swung to the other end of the truck chassis and the bucket had to be placed in the cradle before the mobile crane could be taken on the roads to Bridgeport, should reasonably have foreseen that the boom of the crane might be moved by W. Morello while the crane was under the high tension wires. There was no assurance in this case that the next indicated move of W. Morello, in view of his past conduct and his statement that he was going to leave the site 'as quick as I can,' *fn12" was not exactly what he did in fact do; namely, raise the boom and swing it to the east of the crane chassis in order to put the boom in position for over-the-road travel and to place the bucket in the cradle. The fact finder was not bound to accept the conclusion of the foreman (Mr. Gettis), who had not yet completed his first full day on the job, as to what this move was. The case of Getz v. Freed, 377 Pa. 480, 105 A.2d 102 (1954), is clearly distinguishable, since the rules of golf prescribed what the next indicated move of the golfer was in that case and there was no past history of the golf player having broken such rules.

 33. There is substantial evidence to support a finding that the raising and swinging of the boom in order to lift the bucket and swing it in a position above its cradle was a probable procedure which might be followed by W. Morello (N.T. 276-7). See, also, comment under Requests 29 and 30 above. This request involves a conclusion of law, since it states that defendant has a certain burden of proof. Defendant need not prove that plaintiff should necessarily anticipate the exact risk which occurs. Even if anticipation of such exact risk were required, there is substantial evidence in this record to justify the finding of the fact finder that decedent should have anticipated the exact action taken by W. Morello at the time of the accident, namely, the raising of the boom and the swinging of the bucket to the cradle at the front of the crane, with the probability that the boom would be energized by electricity from the overhead wire. However, it is enough if plaintiff places himself, as he did clearly in this case, in a position of danger where there was no necessity for him to have been. See Dezelan v. Duquesne Light Co., 334 Pa. 246, 248-250, 5 A.2d 552 (1939); Szanborsky v. Armour & Co., 306 Pa. 525, 160 A. 219 (1932).

 34. The fact finder was justified in finding that the decedent was leaning against the tire of the right rear wheel of the crane at the time that the electricity passed from overhead high transmission wires to the boom of the crane and that this involved placing himself in a position of danger in view of several possibilities of action which might be taken by the crane operator, under all the circumstances presented by the record. Some of the pertinent circumstances include, but are not limited to: the presence of the bucket on the spoil pile, the location of the cradle for the bucket on the front of the crane; the inability to swing the boom into its over-the-road position from the cab where the controls for moving the wheels were located; the necessity of being in the cab in order to operate the wheels of the crane; the knowledge that the crane operator was in a hurry to leave the site, that he had earlier that afternoon raised the boom to a point so close to the transmission wire that a ball of flame had been created, and that a possible method of placing the bucket in the cradle (where it would be ready for over-the-road travel) would be to raise and swing the boom from the rear to the front in order to get the bucket positioned in its cradle. Also, the fact finder was entitled to find that the decedent, an experienced and able crane operator, should have anticipated the possibility that, under facts supported by evidence which the fact finder had the right to accept, W. Morello would enter the house of the crane first in order to operate the boom so that it and the bucket would be in their over-the-road positions before entering the cab and moving the crane from under the wires in order to avoid making a third move, which would have been required if W. Morello had entered the cab first and moved the crane from under the wires before moving the boom. The fact finder had the right to reject the opinion of the foreman that the next indicated move of W. Morello in this situation was to drive the crane out from beneath the wires without raising the boom. *fn13"

 The Pennsylvania Supreme Court has repeatedly and recently emphasized that all persons with 'the slightest mentality' know the 'vast potentialities for destruction of electricity.' See Cooper v. Heintz Mfg. Co., 385 Pa. 296, 304, 122 A.2d 699 (1956). Cf. MacDougall v. Pennsylvania Power & Light Co., 311 Pa. 387, 396-397, 166 A. 589 (1933). This exposing of himself to danger by squatting with his back against the tire exposed him to at least two risks, namely, the risk from electricity and the danger from the wheels if the crane was moved.

 Under Pennsylvania law, a person who places himself in a position of danger where he is not required to be for his work or other reasons *fn14" is contributorily negligent. *fn15" See cases cited at page 12 above; Commonwealth Trust Co. of Pittsburgh v. Carnegie-Illinois Steel, 353 Pa. 150, 154-156, 44 A.2d 594 (1945); cf. McNello v. John B. Kelly, Inc., 283 F.2d 96, 100 (3rd Cir. 1960), stating that a person is contributorily negligent 'if he falls victim to one of those dangers that should have made him eschew the course which he followed.' In the Commonwealth Trust Co. of Pittsburgh case, a decedent who had directed the boom operator to swing the boom to a point dangerously near the high tension wires and then placed his hand on the bucket was held to be contributorily negligent as a matter of law. The finding of the trial judge that the decedent was negligent and that such negligence contributed in some degree to the accident was clearly supported by substantial evidence. *fn16"

 Under Pennsylvania law, a plaintiff cannot recover if he is negligent and his negligence contributed in any degree to the injury or death. Middleton v. Glenn, 393 Pa. 360, 363, 143 A.2d 14 (1958); Crane v. Neal, 389 Pa. 329, 332-333, 132 A.2d 675 (1957); McFadden v. Pennzoil Company, 341 Pa. 433, 436, 19 A.2d 370 (1941). *fn17" However, in order to be considered as having contributed to the occurrence, the injured man's negligence must have been a juridical cause of the injury and not simply a condition of its occurrence. Geelen v. Pennsylvania R.R. Co., 400 Pa. 240, 248, 161 A.2d 595 (1960); McFadden v. Pennzoil Company, supra, 341 Pa. at pp. 436-437, 19 A.2d at p. 372. The United States Court of Appeals for the Third Circuit has stated recently:

 'Even though a man chooses an unsafe course he is not barred from recovery for any accident that may occur and he may only be held guilty of contributory negligence if he falls victim to one of those dangers that should have made him eschew the course which he followed.' McNello v. John B. Kelly, Inc., 283 F.2d 96, 100 (3rd Cir. 1960). *fn18"

 In this case, the negligence of the decedent in taking his position against the right rear tire of the crane was a juridical cause of his death because the danger of being injured through electrical power can reasonably be considered as having been included in the risks to which his position exposed him. There was substantial evidence to support the finding that the plaintiff's decedent was negligent and that his negligence contributed to, and was a juridical cause of, his death and that the contributory negligence of the decedent barred plaintiff's recovery in this action.

 The Pennsylvania appellate courts have repeatedly made clear that whenever there is conflicting evidence on the issue of contributory negligence, the findings of the fact finder must control. Polinelli v. Union Supply Co., 403 Pa. 547, 552, 170 A.2d 351 (1961); Smith v. Wheatland Tube Co., 401 Pa. 427, 165 A.2d 76 (1960); Greco v. 7-Up Bottling Co. of Pittsburgh, 401 Pa. 434, 446, 165 A.2d 5 (1960); Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82, 86, 55 A. 839 (1903). In Polinelli, supra, the court said at p. 552 of 403 Pa., at p. 354 of 170 A.2d:

 '* * * this is a case where reasonable minded individuals would disagree as to whether or not she was guilty of negligence which contributed to her fall. Under such circumstances, the jury must answer this question. * * *'

 In Butterman, supra, the appellate court affirmed, per curiam, the opinion of the trial court, which contained this language at ...

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