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JERRY M. BEARY v. PENNSYLVANIA ELECTRIC COMPANY (11/18/83)

filed: November 18, 1983.

JERRY M. BEARY, APPELLANT
v.
PENNSYLVANIA ELECTRIC COMPANY, A CORPORATION AND GLASS CONTAINERS, A CORPORATION V. EDWARDS TANK ERECTION, INC.



NO. 305 PITTSBURGH 1982, Appeal from the Judgment Entered in the Court of Common Pleas of Clarion County, Civil No. 604 C.D. 1978

COUNSEL

John R. Gavin, Oil City, for appellant.

Eugene F. Scanlon, Jr., Pittsburgh, for PA Electric, appellee.

Chester S. Fossee, Pittsburgh, for Glass, appellee.

Henry R. Pope, III, Clarion, for Edwards, appellee.

Spaeth, Brosky and Montemuro, JJ.

Author: Spaeth

[ 322 Pa. Super. Page 54]

This is an appeal from a judgment in a personal injury action. Appellant, plaintiff below, argues that the trial

[ 322 Pa. Super. Page 55]

    court erred in ordering a directed verdict in favor of appellee, Glass Containers Corporation. We agree and therefore reverse and remand for a new trial.

On September 13, 1978, appellant, as an employee of Edwards Tank Erection, Inc., was helping install a steel storage tank at appellee's plant in Knox, Pennsylvania. The moving and assembly of the tank's component steel plates required the use of a mobile crane, which was supplied by Edwards Tank Erection. Appellant was directed to help the crane operator move an electric "panel box" to a nearby site, where the steel plates would be welded together to form the tank. Holding the panel box steady by means of a coil of wire attached to the panel box, N.T. 173-174, appellant walked backwards, ahead of the moving crane. After he and the crane had proceeded in this manner for about 100 feet, the crane's load line touched some electric power lines, causing appellant to sustain serious injuries. N.T. 180-181.

Appellant brought this action in trespass against Pennsylvania Electric Company and appellee, and appellee joined Edwards Tank Erection as an additional defendant. After appellant completed his presentation of evidence, the trial court granted Pennsylvania Electric's motion for a compulsory non-suit but denied appellee's motion for a compulsory non-suit, finding "some evidence of negligence on the part of [appellee]." N.T. 355, 363. Appellant does not challenge the correctness of the court's ruling as to Pennsylvania Electric. After all of the evidence had been presented, the court granted appellee's motion for a directed verdict, with the following order:

And Now, October 23, 1981, we the Jurors empanelled in the above case find that the percentage of causal negligence attributable to the Plaintiff exceeds the causal negligence attributable to the Defendant Glass Containers Corporation.

N.T. 589.

[ 322 Pa. Super. Page 56]

-1-

Appellant first argues that since there was some evidence of appellee's negligence the trial court should have allowed the jury to consider that evidence instead of directing a verdict in appellee's favor.

While a trial court should not submit to a jury for its determination an issue on which there is no evidence, Downing v. Shaffer, 246 Pa. Super. 512, 371 A.2d 953 (1977), the court should direct a verdict "only in a case where the facts are all clear, and there is no room for doubt . . . ." Stephens v. Carrara, 265 Pa. Super. 102, 105, 401 A.2d 821, 823 (1979); Cox v. Equitable Gas Co., 227 Pa. Super. 153, 324 A.2d 516 (1974). In deciding whether a case is "clear," the court should consider the evidence in the light most favorable to the party opposing the motion, accepting as true all of the evidence that supports that party's contention and rejecting all adverse evidence. Litman v. Peoples Natural Gas Company, 303 Pa. Super. 345, 347, 449 A.2d 720, 721 (1982). Also, the court should give the ...


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