Appeal from order of Court of Common Pleas of Montgomery County, No. 70-10159, in case of James Quirk v. Girard Trust Bank, Defendant, and Cutler Industries and Elliot Athey, Additional Defendants.
Charles F. Quinn, with him Frank L. Caiola, and Mazzocone and Quinn, for appellant.
James S. Kilpatrick, Jr., with him Haws & Burke, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Van der Voort, J. Hoffman and Spaeth, JJ., concur in the result.
[ 232 Pa. Super. Page 357]
Appeal is taken to this Court from the Order for Compulsory Non-suit, entered at jury trial on the 23rd day of January, 1973, by the Honorable Louis D. Stefan, Judge, and affirmed by a Court en Banc after hearing, on January 17, 1974.
On September 19, 1969, Plaintiff, an apprentice with Cutler Industries, and Elliot Athey, to whom
[ 232 Pa. Super. Page 358]
Plaintiff was assigned for training, proceeded to a branch of the Girard Trust Bank to repair a malfunctioning outdoor sign. They entered the bank premises to supply power to the sign, after which both he and Plaintiff examined the appearance of the sign to attempt to discern the problem. Athey, by climbing a ladder and removing an access door, was able to peer into the sign. Having then diagnosed the problem, Athey sent Plaintiff to their supply house for parts, referred to as ballasts. In the interim of Plaintiff's absence, Athey testified that he went inside the building to turn off the electricity supplying the sign, and began to work upon the sign. At Plaintiff's return to the scene, Athey called him to mount a ladder to help in the removal of a defective part. While Plaintiff's hands were around said part, and his hands and arms necessarily inside the body of the sign, Plaintiff received a jolt of electricity which forced him loose from his mount on the ladder and caused him to fall to the pavement below, sustaining injury.
Plaintiff's case in trespass was grounded on the theory that someone within the Girard Bank building had negligently resupplied power to the sign, thus causing Plaintiff's injury. Original Defendant Girard Trust Bank brought in the Additional Defendants, Plaintiff's employer and his supervisor.
At trial, Plaintiff's counsel interrogated at length the Additional Defendant, Athey, as on cross-examination, to establish the sequence of events prior to Plaintiff's injury. It was Athey's uncontroverted testimony that he terminated the supply of electricity to the sign before he, and shortly thereafter, the Plaintiff, began their repair of the sign. Further it was Athey's testimony that his hands had first been on the piece of equipment for the removal of which he had sought Plaintiff's assistance and from which Plaintiff alleged he received the electrical shock.
[ 232 Pa. Super. Page 359]
A lengthy examination of Plaintiff followed, and the facts as he described them ...