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BEURY v. HICKS (ET AL. (04/03/74)

decided: April 3, 1974.

BEURY
v.
HICKS (ET AL., APPELLANT)



Appeals from order of Court of Common Pleas of Chester County, June T., 1969, No. 64, in case of Ann H. Beury, Administratrix of the Estate of John R. Beury, deceased, and Ann H. Beury, in her own right, v. Ira Hicks and Dorothy Hicks, his wife, and Philadelphia Electric Company.

COUNSEL

Lawrence E. MacElree, with him Robert J. Shenkin, and MacElree, Platt, Harvey & Gallagher, for appellant.

Allen O. Olin, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent). Opinion by Hoffman, J.

Author: Hoffman

[ 227 Pa. Super. Page 477]

The instant case arose out of an automobile accident which occurred on June 9, 1969. John Beury, appellee's decedent, was traveling on Route 202 in Chester County when a large limb of a dead and decaying tree which overhung the highway fell upon his automobile,

[ 227 Pa. Super. Page 478]

    crashing through the windshield and fatally injuring him. The appellee, as administratrix of her husband's estate and in her own right, brought a trespass action against the owners of the property on which the tree was located (hereinafter Hicks) and the appellant, Philadelphia Electric Company, which performed inspection and maintenance services on trees adjoining the highway in proximity to the company's power lines.

The case was tried by a jury before the Honorable John M. Wajert. After a lengthy trial, the jury returned a verdict in plaintiff-appellee's favor against both defendants. The Hicks (property owners) have not appealed from the judgment. In its appeal the appellant does not allege the existence of any trial errors that would justify the granting of a new trial. Rather, appellant contends that the court below should have granted its motion for a judgment n.o.v. because the evidence does not support a finding of liability on the part of the appellant.

Appellant concedes that this court must, in reviewing the denial of the motion for judgment n.o.v., consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the appellee as verdict winner. Costello v. Fusco, 191 Pa. Superior Ct. 641, 159 A.2d 73 (1960).

The evidence disclosed that for twenty-four years the appellant inspected trees along the highway, and removed limbs and branches from those trees. On several occasions, it had trimmed and removed overhanging branches from the tree in question. Appellant's employee testified that he was charged with the duty of inspecting power lines to detect dangers posed by over-hanging limbs of trees in proximity to the lines and adjoining the highway, and that property owners rely upon the company to do so. The Hicks state that based upon past performance and representations they relied exclusively upon appellant to take care of the

[ 227 Pa. Super. Page 479]

    trees located near the lines, and, specifically the ...


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