Appeal from judgment of Court of Common Pleas of Clarion County, May T., 1958, No. 41, in case of Ethel Shrum, administratrix of estate of Clarence R. Shrum, deceased, v. Pennsylvania Electric Company et al.
H. Ray Pope, Jr., for appellant.
Robert E. Wayman, with him Wayman, Irvin, Trushel & McAuley, for appellee.
Robert B. Filson, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ.
The cause of action declared upon in this case arose on August 16, 1957, when plaintiff's decedent was electrocuted by coming in contact with a "dragline" (a type of shovel used in strip mine operations), the boom of which was in close proximity to an overhead high power tension line of Pennsylvania Electric Company ("Electric Company"). Trial commenced June 12, 1961 and was concluded June 14, 1961. The trial court granted the Electric Company's motion for non-suit; neither the other original defendant, Raymond Zacherl, or the additional defendant, Joseph Zacherl (trading and doing business as Zacherl Coal Company) offered any evidence. On June 14 the jury returned its verdict in favor of Raymond Zacherl and against Joseph Zacherl in the amount of $25,000. Timely motions were filed by plaintiff to take off the non-suit and for a new trial. No post-trial motions were filed by the verdict loser, Joseph Zacherl.
There then followed a seven year lapse of time until August 9, 1968, when the case was praeciped for argument by plaintiff. The motions were argued the following month; from their refusal this appeal was taken. We are met at the outset with the claim of the Electric Company that the plaintiff is barred by laches from pursuing its motions and that this appeal should be dismissed on that account.
While defendants did not file motions for non pros, they did argue in the lower court that plaintiff should be barred from proceeding because of failure to take any action for over seven years; that this delay was prejudicial to them because of the unavailability of many witnesses. The lower court in its opinion stated, "we think there is merit in the contention." Moreover, no transcript of the trial proceedings was available to the court in considering the motions. The court held that the duty to obtain and pay for the transcript (the court itself not having directed that a transcript be prepared and no appeal having been taken) was upon the moving party. Act of May 11, 1911, P. L. 279, Sec. 3, 12 P.S. 1198. As the court observed, "The trial was held over seven years ago and the court could not be expected to recall the details." The laches in bringing the motions on for argument and the failure to furnish a transcript were among the reasons given for the refusal of the motions. In addition, however, the court did review the evidence and its rulings to the best of its ability, and concluded that no error had been committed.
In reply, plaintiff argues in her brief that had appellees "at any time wished to get this matter concluded at an earlier date, they had every opportunity to have ordered the case on the lower court's argument list. Having failed to do so, and having shown nothing of record with respect to their being prejudiced, they
should now be estopped in their efforts to claim laches. . . . Any undue delay in this case was because the lower court failed to see that the testimony was timely transcribed. . . . The case was finally argued pursuant to action taken by appellant and the appellees should not now ...