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BURKE ET UX. v. DUQUESNE LIGHT COMPANY (12/11/74)

decided: December 11, 1974.

BURKE ET UX.
v.
DUQUESNE LIGHT COMPANY, APPELLANT, ET AL.



Appeal from judgment of Court of Common Pleas, Civil Division, of Allegheny County, Jan. T., 1971, No. 1346, in case of William Burke and Dolores Burke, his wife, v. Duquesne Light Company and John H. Granz Company, Additional Defendant.

COUNSEL

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

Frederick N. Egler, with him Janice I. Gambino, Sigmund Rosenwasser, Edward Jaffee Abes, and Egler, McGregor & Reinstadtler, and Rosenwasser & Rosenwasser, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Dissenting Opinion by Jacobs, J. Hoffman, J., joins in this dissenting opinion.

Author: Price

[ 231 Pa. Super. Page 415]

This appeal is before the court by reason of the lower court's refusal to grant the motions of appellant, Duquesne Light Company, for judgment n.o.v. or in the alternative, for a new trial. The case was tried before a jury, which awarded a verdict in the amount of

[ 231 Pa. Super. Page 416]

$380,800 to William Burke and $20,000 to Mrs. Burke against appellant and the additional defendant below, John H. Granz Company.

The cause of action arose when William Burke, then an employee of the John H. Granz Company, fell from a scaffold which was suspended approximately 22 feet above ground. The record reveals that on September 3, 1970, Mr. Burke was installing aluminum siding on a house in the Hazelwood section of Pittsburgh. In the course of his work, Mr. Burke received a shock when a section of aluminum channel which he was handling came into contact with an uninsulated electric wire carrying 2400 volts of current. The electric wire had been placed on the premises by the Duquesne Light Company. Although nothing appears of record as to the date the wires were actually installed, there was testimony that the pole and crossarm to which the uninsulated wire was attached had been installed in 1929, approximately eight years after the present owner first occupied the house. There was also evidence that the wires were approximately 31 feet above ground, and that the wire which caused the shock to Mr. Burke was some six feet ten inches to nine feet six inches from the house on which he was working. Nothing in the record indicates whether the pole, crossarm, or wiring had been replaced or relocated since its initial installation.

The shock Mr. Burke sustained caused him to fall backwards, off the scaffold, which carried no catch platform or railing, a violation of the Pennsylvania Department of Labor and Industry's regulations. A fellow employee tried to stop Mr. Burke's fall, but was unable to hold him. The injuries Mr. Burke subsequently sustained rendered him a quadriplegic.

The Burkes sued the Duquesne Light Company (Duquesne) for breach of its duty of due care toward persons who may lawfully come into contact with the

[ 231 Pa. Super. Page 417]

    dangerous power lines. Duquesne then joined the John H. Granz Company (Granz) as an additional defendant, alleging Granz's sole and joint liability for its failure to provide Mr. Burke with a safe place to work and for its failure to comply with the Department of Labor and Industry's regulations.

In support of its motion for judgment n.o.v., appellant alleges that the evidence produced by the plaintiff below was insufficient to send the issue of Duquesne's negligence to the jury. The Burkes produced two expert witnesses who testified as to the distance of the electric wires from the house which Mr. Burke was repairing at the time of his accident. These experts stated that although the distance conformed to the regulations found in the National Safety Code, it was insufficient, in their opinion, to constitute good engineering practice.

A similar issue to that raised by appellant was decided in Groh v. Philadelphia Electric Company, 441 Pa. 345, 349-50, 271 A.2d 265, 267 (1970), where the Court stated: "Thus, the jury had before it the literal terms of the Code, the witness' interpretation of the spirit of the 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."

Groh is controlling in the instant case, and the matter of Duquesne's negligence was properly before the jury. The denial of a judgment n.o.v. is affirmed.

Appellant's second allegation of error concerns the charge to the jury. Duquesne asserts that reversible error was committed by the lower court, which refused to submit the issue of the sole liability of the additional defendant, Granz, to the jury. Rather, the court charged the jury that if they found for the

[ 231 Pa. Super. Page 418]

    plaintiff, the verdict could be against either Duquesne Light Company alone, or against Duquesne Light Company and John H. Granz Company.

In his opinion, the learned trial judge explains why he did not charge as to Granz's sole liability: "We have reviewed the charge in its entirety and examined the Briefs of counsel and closely examined the law of Pennsylvania on this point. We find that according to the weight of Pennsylvania Law, a jury cannot find in favor of an employee resulting in the sole liability against his employer if the two are engaged in a contractual relationship under Workmen's Compensation. To hold otherwise would produce a nullity."

In support of his opinion, the trial judge cited two cases, Jackson v. Gleason, 320 Pa. 545, 182 A. 498 (1936) and Evans v. Otis Elevator Company, 403 Pa. 13, 168 A.2d 573 (1961). Evans is distinguishable from the instant case in that the original defendant failed to allege sole liability on the part of the additional defendant employer. Clearly, in such a situation, a verdict against the additional defendant alone could not be permitted since no facts in support of such a verdict were alleged or proved.

Jackson is also distinguishable from the case before us. In Jackson, the original defendant alleged only that the additional defendant employer was solely liable to the plaintiff; the additional defendant was not joined to protect defendant Gleason's right to contribution. The court charged that the question which the jury had to resolve was simply whether the accident happened solely due to the defendant Gleason's negligence. If so, the plaintiff could recover. If not, no verdict for the plaintiff-employee could be reached.

In Jackson, the court protected the defendant's right to a verdict in its favor and against the plaintiff-employee when he asked the jury whether the accident had been ...


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