Appeal from judgment of Court of Common Pleas No. 3 of Philadelphia County, Dec. T., 1964, No. 4610, in case of Elmer J. Palenscar v. Michael J. Bobb, Inc. et al.
Sidney L. Weinstein, with him Weinstein and Leonard, for appellant.
Thomas E. Byrne, Jr., with him Krusen, Evans and Byrne, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Jones. Dissenting Opinion by Mr. Justice O'Brien. Mr. Justice Roberts joins in this dissent.
In February of 1965, Elmer J. Palenscar instituted an action in trespass against Michael J. Bobb, Inc. (Bobb) and Best Markets, Inc., to recover damages for injuries sustained as the result of an accident which occurred on July 13, 1964. A non-jury trial in the Court of Common Pleas of Philadelphia County resulted
in a verdict against Bobb in the amount of $51,000.*fn1 The instant appeal is from the judgment non obstante veredicto which was entered by a court en banc, the trial judge dissenting, upon motion by Bobb.
In July of 1964, Elmer A. Palenscar (Palenscar, Sr.) and Elmer J. Palenscar (Palenscar, Jr.) were partners in an electrical contracting business.*fn2 At this same time, Bobb was the lessee of a warehouse owned by Best Markets, Inc., and had called upon the firm of Elmer A. Palenscar and Son more than one hundred times over the previous eighteen months to do all of Bobb's electrical work.
On July 13, 1964, it was discovered that at least part of the warehouse electrical system was inoperative, and the Palenscar firm was contacted to locate the problem and make repairs. Palenscar, Sr., went to the warehouse and, after a brief inspection, called the Philadelphia Electric Company to have them send over a "primary man."*fn3 The two men checked the "primary" system, and, having found no problems there, the Philadelphia Electric Company employee left the premises.
Palenscar, Sr., next met Mr. Leno, an employee of Bobb, and told him that the entire electrical system was obsolete and dangerous. Specifically, Leno was told that the circuit breakers had been in need of repair
since before Bobb leased the premises. Palenscar, Sr., estimated that it would cost well over $1,000 to replace the existing system, and Leno told him that, since the building was due to be condemned at any time for the construction of the Delaware Expressway, Leno preferred not to make such an investment.*fn4
In response to a call from Palenscar, Sr., William Lawler, an employee of Beeman Electric Company, brought some electrical meters to the warehouse, and the two men proceeded to check the circuitry for the east side of the building, having first cut off the power to that side. Meanwhile, Palenscar, Jr., arrived with a coil of wire his father had requested, and proceeded to check the west side of the building. However, he did not first shut off the power for that side.
During the course of his work, Palenscar, Jr., came upon one particular circuit breaker, which he believed to be the source of the problem. By this time, Palenscar, Sr., and Lawler had found everything to be satisfactory in their half of the warehouse, and had restored the power to the east side. In order to examine the circuit breaker, Palenscar, Jr., began removing the cover from the box which enclosed the breaker. Before he could finish, there was a flash of light and an explosion, as the result of which Palenscar, Jr., was severely burned, suffering the injuries for which he presently seeks recovery. The explosion was apparently caused by a short ...