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June 4, 1963


Appeal, No. 225, March T., 1962, from judgment of Court of Common Pleas of Westmoreland County, July T., 1958, No. 571, in case of Virginia Skoda, administratrix of estate of Frank B. Skoda, Jr., deceased, v. West Penn Power Company and National Mines Corporation. Judgment reduced and affirmed; reargument refused July 5, 1963.


Robert W. Smith, Jr., with him George Y. Meyer, and Smith, Best & Horn, and Meyer, Darragh, Buckler & Bebenek, for appellant.

Ned J. Nakles, with him Louis C. Glasso, Thomas A. Livingston, and Lightcap, McDonald & Moore, for appellee.

Before Bell, C.j., Musmanno, Jones, Eagen and O'brien, JJ.

Author: O'brien

[ 411 Pa. Page 325]


This is an appeal by West Penn Power Company, a corporation, from a judgment entered against it and National Mines Corporation on a verdict of a jury, in a survival action by appellee, as administratrix of her deceased husband's estate.

Frank B. Skoda, Jr., employed by National Mines Corporation as a mechanic, was injured while at work on June 24, 1957, and died on August 17, 1957, as a result of the injuries. The West Penn Power Company supplied electricity to the National Mines Corporation at its plant in Luzerne Township, Fayette County.

Wrongful death and survival actions were instituted by Virginia Skoda, widow of the deceased, in her capacity as administratrix of her husband's estate. The wrongful death action was nonsuited as it was barred by the statute of limitations and a verdict in the survival

[ 411 Pa. Page 326]

    action was returned in the amount of $152,213. We are only concerned with the judgment in the survival action, as it is agreed the wrongful death action is barred by the statute of limitations. The National Mines Corporation was joined as additional defendant by the West Penn Power Company and the verdict is against both defendants. The West Penn Power Company filed motions for a new trial and for judgment n.o.v. The National Mines Corporation did not file any motions or join in this appeal.

Appellant, in its contention for judgment n.o.v., maintains that: (1) there is not sufficient evidence to submit to the jury the issue of negligence of West Penn Power Company, either as the sole legal cause of the accident, or as the concurrent cause with the negligence of National Mines Corporation; and (2) the decedent was, as a matter of law, contributorily negligent. In its motion for new trial, West Penn says the verdict was so shockingly disproportionate to the injuries of decedent as to be excessive.

In considering judgment n.o.v., the evidence, together with all reasonable inferences therefrom, are considered in the light most favorable to the verdict winner. Ischo v. Bailey, 403 Pa. 281, 169 A.2d 38 (1961); Matkevich v. Robertson, 403 Pa. 200, 169 A.2d 91 (1961); Muroski v. Hnath, 392 Pa. 233, 139 A.2d 902 (1958).

The evidence, so considered, shows that Frank B. Skoda, Jr., at the time of his death was 35 years old, he was employed by the National Mines Corporation as a mechanic for about ten years. His place of employment was in and about the garage building, repair shop and other buildings of National Mines in Luzerne Township, Fayette County. On June 24, 1957, the day of the accident, he was engaged with another employee in repairing a fuel tank on a 22 ton Euclid dump truck, which was used exclusively on the premises of National

[ 411 Pa. Page 327]

Mines for the purpose of hauling mine refuse from the mine opening to the slate dump. It was necessary to remove the fuel tank from the body of the truck and in order to do so the truck body was elevated hydraulically and then a timber was wedged under the body to prevent it from falling while the tank was removed. The truck was placed over an underground fuel tank, near the entrance to the mine garage, to drain the fuel from the truck before removing it for the repairs. It became necessary to move the truck in order for other trucks to have access to the underground fuel tank.

The work of removing the fuel tank, welding and painting it was done in the morning, and in the afternoon, in moving the truck without the fuel tank, Skoda walked along beside the truck carrying a gallon fuel can in which was placed a line feeding to the engine of the truck. Robert Pierno, a fellow employee, slowly drove the truck in reverse while watching Skoda's feet. The truck was moving backwards with the body in the upright position, Pierno watching Skoda's feet, when the topmost part of the body, known as the truck cab protector, came in contact with a high tension wire. Pierno heard a hissing sound and stopped the truck and, alighting, saw decedent on the ground enveloped in fire. The fire was extinguished with the help of other employees and Skoda was taken to the hospital where he died as a result of the burns on August 17, 1957.

The wire touched by the truck was one of three parallel wires which carried 25,000 volts of electricity. The electrical lines of the appellant supplied the electricity to National Mines, which lines were carried by means of poles to a transformer station, which was a brick structure with an enclosed area in which were poles and transformers. The wires were between 20 and 21 feet from the ground, copper and ...

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