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FELGER ET AL. v. DUQUESNE LIGHT COMPANY (01/26/71)

decided: January 26, 1971.

FELGER ET AL., APPELLANTS,
v.
DUQUESNE LIGHT COMPANY



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1967, No. 541, in case of William E. Felger, Jr., a minor by his parent and natural guardian, Corrine Schwab and Corrine Schwab, in her own right, v. Duquesne Light Company.

COUNSEL

J. Jerome Mansmann, with him P. J. McArdle, for appellants.

Robert E. Wayman, with him Wayman, Irvin, Trushel & McAuley, for appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Mr. Justice Jones would affirm the Judgment of the Court of Common Pleas. Mr. Justice Pomeroy would affirm the Judgment on the basis of the Opinion of Judge McKenna for the Court en banc. Mr. Justice Cohen took no part in the decision of this case. Opinion in Support of Affirmance of the Judgment N.o.v. by Mr. Chief Justice Bell. Opinion in Support of the Removal of the Judgment N.o.v. by Mr. Justice Roberts. Mr. Justice Eagen and Mr. Justice O'Brien join in this opinion.

Author: Per Curiam

[ 441 Pa. Page 422]

The Court being equally divided, the Judgment N.O.V. entered by the Court of Common Pleas is affirmed.

Disposition

Judgment n.o.v. affirmed.

Opinion in Support of Affirmance of the Judgment N.O.V. by Mr. Chief Justice Bell:

I agree with the decision of the lower Court, which entered a Judgment N.O.V. The pole in the playground

[ 441 Pa. Page 423]

    area had been in the same position for eleven years without any injury to anyone, and plaintiff admitted he knew he had no business on the pole, and that it was dangerous for him to be on the pole. I believe that all of the Court agree that defendant is not an insurer. Under all the facts of this case, and after eleven years ...


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