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KRONK v. WEST PENN POWER COMPANY (09/27/66)

decided: September 27, 1966.

KRONK, APPELLANT,
v.
WEST PENN POWER COMPANY



Appeal from judgment of Court of Common Pleas of Westmoreland County, July T., 1960, No. 742, in case of Ronald Kronk and James E. Kronk v. West Penn Power Company and W. J. Glunt.

COUNSEL

Henry E. Shaw, with him A. C. Scales, and Scales and Shaw, for appellants.

B. Patrick Costello, with him Robert W. Smith, Jr., for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Jones, Mr. Justice Eagen and Mr. Justice Roberts concur in the result. Mr. Justice Musmanno dissents.

Author: Bell

[ 422 Pa. Page 459]

Appellant instituted an action of trespass against West Penn Power Company to recover damages for personal injuries. West Penn brought in appellant's employer Glunt as an additional defendant. At the trial of the case the trial Judge entered a compulsory non-suit in favor of each defendant, which the Court en banc refused to remove. Following entry of judgment of non-suit and the Order dismissing the motions to remove the nonsuits, plaintiff appealed.

The residence of a man named Stahl is located in a rural area of Westmoreland County where water is supplied by private wells. Stahl employed Glunt, a well

[ 422 Pa. Page 460]

    digger, to drill a well on his (Stahl's) property. On July 23, 1959, in daylight, appellant and two other employees of Glunt went to the Stahl property for the purpose of locating the spot where a well should be drilled. They remained on the premises for fifteen to thirty minutes. The point for drilling was located by the use of the fork of a tree as a divining rod. Thereafter a stake was planted for later identification of the spot.

This spot was directly under the southerly of two overhead lines owned and operated by West Penn which were strung in an east-west direction across the Stahl property. The two lines are 7.2 feet apart. The northerly line is dead, but power is conveyed through the southerly line. These lines, which were erected in 1940, are suspended from poles which are 480 feet apart. The pole to which the southerly line is attached is about 75 feet west of the spot where the well was to be drilled. The lines are suspended at a distance of at least 30 feet from the ground.

On July 24, 1959, the day after appellant's first visit to the Stahl property, he and a fellow employee named Baughman arrived there around noontime. Each was driving a vehicle, the appellant a so-called drilling rig and Baughman a helper's truck.

The drilling rig consisted of a truck at the rear end to which a so-called mast was attached. The mast was connected to the truck by an elevating apparatus. When the truck was moved from place to place, the mast was carried in a horizontal position on the floor of the rig. When the mast was to be put in use, it was raised to a vertical position by use of an elevating mechanism. When the mast was fully elevated, it could be raised to a height of approximately 39 feet above the ground.

After some preliminaries, appellant went to the control levers and started to raise the mast. He continued to do so until the ...


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