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decided: October 9, 1970.


Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1961, No. 4434, in case of Theresa Groh, administratrix of estate of Elwood F. Groh, deceased, v. Philadelphia Electric Company.


John R. McConnell, with him Raymond T. Cullen, Jr., and Morgan, Lewis & Bockius, for appellant.

Bernard Edelson, with him B. Nathaniel Richter, Kenneth Syken, and Caine, DiPasqua & Edelson, and Richter, Syken, Ross, Binder & O'Neill, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Cohen. Concurring and Dissenting Opinion by Mr. Chief Justice Bell. Concurring and Dissenting Opinion by Mr. Justice Roberts. Concurring and Dissenting Opinion by Mr. Justice Pomeroy.

Author: Cohen

[ 441 Pa. Page 347]

This is an appeal by the Philadelphia Electric Company, appellant, from a judgment entered in favor of Theresa Groh, Administratrix of the Estate of Elwood F. Groh, in an action in trespass. Appellee's decedent was foreman of the maintenance crew at the Anchor Finishing & Dyeing Company located at Adams Avenue and Leiper Street in Philadelphia. Groh had held this job for two years, when on the morning of May 29, 1961, he was assigned the job of removing the rainspouting on the outside of the building facing Adams Avenue. Running parallel to the building along Adams Avenue and six feet, three inches from it was appellant's transmission line. The lowest line was about forty feet above the street, and the highest line was about two feet below the windowsills of the fourth floor of the building.

In the wall to which the downspouting was secured and adjacent to the downspouting was a window which opened by pivoting on its horizontal axis. The window was opened, and decedent straddled the sill, sitting beneath the opened portion of the window. One leg was outside the window; the other was inside and next to some pipes. Decedent leaned under the sash and outside the building, and he then disconnected a ten-foot

[ 441 Pa. Page 348]

    section of the rainspout and maneuvered it so as to bring it under the opened portion of the window and into the building. At this point there was a sound and a flash. Decedent was badly burned and died on June 2, 1961.

Appellee filed a complaint in trespass which stated that the action was being brought under the Wrongful Death Act, Act of April 26, 1855, P. L. 309, as amended, 12 P.S. § 1602, and Pa. R. C. P. 2202(a). On May 22, 1967, after the trial had begun, the court below permitted appellee to amend the complaint to state a cause of action on behalf of decedent's estate under the Survival Act, Act of April 18, 1949, P. L. 512, as amended, 20 P.S. § 320.601. The jury returned a lump sum verdict of $80,000 which the court molded so as to allocate $65,500 to the Wrongful Death Action and $14,500 to the Survival Action. After denial of motions for a new trial and judgment n.o.v. by the court en banc, this appeal was taken.

The Philadelphia Electric Company argues that appellee failed to present any credible evidence from which the jury could reasonably find it negligent, that decedent was contributorily negligent as a matter of law and that the cause of action under the Survival Act was barred by the statute of limitations.

As to evidence of its negligence, appellant argues that appellee's case rested totally on the testimony of its one expert witness and that his testimony was so contradictory as to be worthless. On direct examination the expert, Dr. Kaplan, testified that the National Bureau of Standards Electrical Safety Code was a commonly accepted standard of good practice and that it recommended an eight foot clearance from the side of a building for 13.2 KV transmission lines. On cross-examination the witness admitted that of the three wires making up this 13.2 KV line the voltage from

[ 441 Pa. Page 349]

    any one wire to ground was between 7500 and 7800 volts and that under the literal wording of the National Electric Safety Code a conductor of such voltage could be within three feet of the wall. In spite of the literal wording of the Code, the witness stated: "A. I feel that, specifically, the code intended a clearance of eight feet in the case of a 13.2 voltage line, with voltage line-to-line (as opposed to line-to-ground), what would be called in the industry a thirteen-thousand-volt line. I know of no one in the operation of the industry who would refer to these lines as 7500 volts, and in view of my understanding of the industry I think the 13.2 thousand volt spacing is what the code intended it to be. And that is what should have been used in this case." And later: "A. It seems to me that from reading some of the discussions that entered into the setting up of this code it was intended that reasonable good space should be maintained for the purpose of safety and it seems to take a line of thirteen thousand volts and put it within three feet of a window doesn't seem to me that would be very safe practice. Q. Well, don't you agree with what the table says? Doesn't it refer to conductors and not to lines, this Table 4? A. You are absolutely correct there. There is no indication as to whether it is from line to line or from line to ground. According to this, it can come within a three-foot clearance, but as a matter of purely professional experience, I don't think it would be safe." And finally: "Q. At the time of the accident, was the wire that was six feet, three inches from the side of the building a safe installation or unsafe within the standards, judged by the standards at that time? A. I think, within the intent of the National Safety Code, it was too close in the absence of any guards or protection."

Thus, the jury had before it the literal terms of the Code, the witness' interpretation of the spirit of the

[ 441 Pa. Page 350]

Code, and the witness' opinion independent of (and in fact contrary to the literal wording of) the Code. In presenting the latter two pieces of evidence, appellee did present sufficient evidence to go to the jury and evidence from which the jury could reasonably have found appellant negligent.

Appellant's argument that decedent was contributorily negligent as a matter of law is a three-pronged one: (1) decedent saw or should have seen the wires, (2) decedent was specifically warned to be careful while working around the wires, and (3) decedent chose a dangerous method of removing the downspouting when two safe alternatives were available.*fn1 As a subpoint to these appellant argues that it was error for the court below to have instructed the jury that appellee's decedent was entitled to a presumption of due care.

In a long series of cases this Court has held that the mere presence of power lines does not indicate an obvious danger and that the public is not charged with knowledge of the amount of current in (and thus the risk associated with) a particular line. Stimmel v. Kerr, 394 Pa. 609, 148 A.2d 232 (1959); Brillhart v. Edison Light & Power Company, 368 Pa. 307, 313-14, 82 A.2d 44 (1951); Ashby v. Philadelphia Electric Company, 328 Pa. 474, 195 Atl. 887 (1938).*fn2 Therefore, the ...

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