Appeal from judgments of Court of Common Pleas of Columbia County, May T., 1963, No. 191, in case of Amelia S. Karam, administratrix of estate of Philip A. Karam, Jr., deceased, et al. v. Pennsylvania Power & Light Company.
Gailey C. Keller, with him Smith, Eves and Keller, for appellant.
Richard C. Shadyac, with him C. W. Dickson, David C. Dickson, Jr., and McGinnis, Berg, Shadyac & Nolan, for appellee.
Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J. Wright, J., concurs in the result.
[ 205 Pa. Super. Page 320]
In this wrongful death and survival action the jury awarded verdicts in favor of the plaintiff in both actions. The verdict in the wrongful death action was $3000.00 and the verdict in the survival action was $5000.00. Defendant's motions for judgment n.o.v. and a new trial were refused by the court below and judgments entered on the verdicts. The defendant power company has appealed from the judgments so entered. In its argument appellant asks for judgment n.o.v.
We have evaluated the testimony in the light most favorable to the verdict winner as we are required to do in considering a request for judgment n.o.v. Matkevich v. Robertson, 403 Pa. 200. Plaintiff is entitled to have the oral evidence supporting the verdict considered and all the rest rejected. Sorrentino v. Graziano, 341 Pa. 113.
[ 205 Pa. Super. Page 321]
The decedent was electrocuted on June 24, 1962, at approximately 11:13 p.m. when the car he was backing on Eighth Street, a public street in the Town of Bloomsburg, came into contact with electricity from a 2300 volt broken live wire of appellant's transmission system. A severe storm had caused the wire to break and fall to the street. The appellant, whose repair station was located about 1 1/2 blocks from the scene, was notified that the wire was down at 11:05 p.m. Ten employees of appellant were on duty at that time, four of whom were qualified to handle this live wire. No repairman arrived at the scene of the fallen wire nor was anything else done to correct the situation prior to the time that the decedent was killed.
The decedent was 18 years of age and of normal intelligence at the time of his death. He was returning home with his younger brother after inspecting his mother's place of business for damages from the storm. The decedent's uncle was standing near the corner of Eighth and Iron Streets as decedent drove up and stopped. Decedent told his uncle he had to take Eighth Street to go home because Seventh Street by which he had planned to go was flooded. The uncle told him that he thought there were some wires ahead which he couldn't see and a hot wire nearby in front of his parked car. The end of the hot wire was near the curb and a number of other cars had passed it safely. Decedent proceeded slowly west on Eighth Street passing the hot wire. When he came to a wire curled up in the middle of the street he was afraid to proceed farther and started to back his car. He asked his uncle to watch him as he backed. With door open and window down and looking to the rear he slowly backed. At this point the electrocution occurred.
The defendant asks that judgment n.o.v. be entered in its favor on two bases. It argues that the court should not have submitted the matter of the defendant's
[ 205 Pa. Super. Page 322]
negligence to the jury because the facts present no evidence of negligence on the part of the defendant and that the decedent was contributorily negligent as a matter of law. We will ...