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DENSLER v. METROPOLITAN EDISON COMPANY (09/22/75)

decided: September 22, 1975.

DENSLER, APPELLANT,
v.
METROPOLITAN EDISON COMPANY



Appeal from judgment of Court of Common Pleas of Northampton County, Jan. T., 1969, No. 150, in case of Harry Densler v. Metropolitan Edison Company.

COUNSEL

James C. Hogan, with him Robert A. Freedberg, Herbert G. Litvin, and Hogan and Scott, for appellant.

John J. DiGiacomo, with him Teel, Stettz, Shimer & DiGiacomo, for appellee.

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

Author: Hoffman

[ 235 Pa. Super. Page 588]

Appellant contends that the lower court erred in excluding certain evidence which he offered concerning the appellee's alleged negligence, and in subsequently granting appellee's motion for a compulsory non-suit.

In July, 1968, the appellant, Harry Densler, was employed as a technician for Clear-Pic Cablevision Co., a division of National Trans-Video, Inc., a cable television company. Clear-Pic, by virtue of a licensing agreement, was permitted to attach its cable to poles owned and operated by the appellee, Metropolitan Edison Co., ("Met Ed") an electric power company. At approximately 8:30 on the morning of July 12, 1968, the appellant and a co-worker, Robert Transue, received an order from their supervisor, Stephen Parkansky, to change a line extender, or small amplifier, located on a Clear-Pic line attached to a Met Ed utility pole on Frost Hollow Road

[ 235 Pa. Super. Page 589]

    in Forks Township. Transue went up a ladder and changed the line extender. The appellant then threw a coaxial cable up to Transue, which Transue attached to the line extender. Appellant, still on the ground, then took a meter reading. Transue then came down from the pole, and he and the appellant started back to their shop. On the way there, they met Parkansky, who told them that they had installed the wrong line extender. Parkansky told Transue and the appellant to return and replace the line extender. When they returned to the pole, Transue put the ladder up against the pole and began to ascend it, carrying a new line extender. The appellant got the meter and coaxial cable out of the truck; he remembered nothing more about the accident. Parkansky testified that Transue told him, immediately after the accident, that appellant "threw a line up to him, he was going to read the meter from the truck to save time, and he threw a line up to me and it wrapped around the power line." Parkansky arrived at the scene within a few minutes after the accident and found the appellant lying near the bottom of the pole, "his glasses . . . half off his face, . . . foaming at the mouth and . . . moaning. He was unconscious." In his left hand, he was holding a piece of coaxial cable approximately six feet long.

The forty-foot Metropolitan Edison pole around which this accident occurred carried three high-voltage power lines, in addition to the television cable. Although the power lines were designed to carry 34,500 volts, phase-to-phase voltage, they were uninsulated. According to answers to interrogatories by F. J. Smith, Vice President of Met Ed, which were read to the jury, the three hightension wires were attached to the pole at 24.55, 28.75 and 32.85 feet above ground level; the television cable was located 7.43 feet below the lowest Met Ed wire. Nevertheless, Parkansky, appellant's supervisor, testified that "the lower power line, in my estimation, was about four feet above the television cable." Appellant

[ 235 Pa. Super. Page 590]

    testified that the nearest electrical line "looked, approximately, around four feet" above the television cable.

The coaxial cable which apparently came into contact with the high-tension wire was insulated. However, Martin Kaplan, appellant's expert witness, testified that "[i]n any voltage above three hundred volts, the insulation would break down and would, for all practical purposes, would not be there." It appears that this cable, though insulated sufficiently to withstand the voltages commonly used in cable television transmission, would not withstand accidental contact with a high-tension wire.

Appellant brought suit against the appellee in the Court of Common Pleas of Northampton County. The case went to trial before a jury on January 28, 1974. On January 30, 1974, a compulsory non-suit was entered against the appellant. On September 18, 1974, the court en banc denied the appellant's motion to remove the compulsory non-suit. On October 2, 1974, judgment was entered in favor of the appellee. This appeal followed.

Our courts have long recognized that the standard of care imposed upon a supplier of electrical power, particularly when that power is supplied at high voltage, is among the highest recognized in the law of negligence. "A supplier of electrical current 'is bound not only to know the extent of the danger, but to use the very highest degree of care practicable to avoid injury to everyone who may be lawfully in proximity to its wires and liable to come accidentally or otherwise in contact with them.'" Brillhart v. Edison Light & Power Co., 368 Pa. 307, 312, 82 A.2d 44 (1951), citing Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, 543, 50 A. 161 (1901) and other authority. "That a transmission line is a dangerous instrumentality is recognized everywhere. No matter where located it is a source of grave peril and the law requires that the possessor of such an instrumentality exercise a high degree of care[.]" Yoffee v. Pa. Power & Light Co., 385 Pa. 520, 536,

[ 235 Pa. Super. Page 591123]

A.2d 636 (1956). "Enigmatic as is the basic element of electricity, no one with the slightest mentality is ignorant of its vast potentialities for destruction. The degree of care required to protect people from this devastating element is no less than that required to prevent poisonous reptiles from breaking loose from their restraining enclosures. As the proprietor of ferocious beasts may not, by pleading excessive cost for confining them, escape liability for the loss of life occasioned by his savage wards, so also the owner of high-voltage electric machinery may not avoid responsibility for the devastation caused through his failure to adequately guard such uninhibited devices." Cooper v. Heintz Mfg. Co., 385 Pa. 296, 304, 122 A.2d 699 (1956).

The class of persons "lawfully in proximity" to the wires includes not only members of the general public who walk along the street or sidewalk, but maintenance employees who work on or around the utility poles. In Erie County Electric Co. v. Mutual Telephone Co., 265 Pa. 181, 184, 108 A. 524 (1919), wires of both the electric company and the telephone company were attached to a telephone pole. Our Supreme Court noted that "[i]t was the duty of that [electric] company to have its wire there properly insulated, for it is presumed to have ...


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