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JERRY M. BEARY v. CONTAINER GENERAL CORPORATION (10/01/87)

filed: October 1, 1987.

JERRY M. BEARY, APPELLEE,
v.
CONTAINER GENERAL CORPORATION, A CORPORATION, APPELLANT



Appeal from the Judgment entered March 14, 1986 in the Court of Common Pleas of Clarion County, Civil Division, No. 604-1978.

COUNSEL

Chester S. Fossee, Pittsburgh, for appellant.

John R. Gavin, Oil City, for appellee.

Del Sole, Kelly and Popovich, JJ.

Author: Kelly

[ 368 Pa. Super. Page 65]

This appeal arises from the trial court's denial of appellant's (Container) motions for judgment n.o.v. and a new trial. We modify judgment and affirm.

The instant action commenced when appellee/plaintiff, Jerry Beary (Beary), filed suit sounding in trespass against

[ 368 Pa. Super. Page 66]

Pennsylvania Electric Company*fn1 and appellant Glass Containers Corporation, now Container General Corporation. Container joined Edwards Tank Erection, Inc. (Edwards), Beary's employer, as an additional defendant upon a theory of contractual indemnity.

The first trial commenced October 19, 1981*fn2 and, at the conclusion of the testimony on October 23, 1981, the trial court directed the jury to return a verdict for Container and against Beary. On appeal to this Court, the trial court's directed verdict was reversed, and the case remanded for a new trial. Beary v. Pennsylvania Electric Co. and Glass Containers, 322 Pa. Super. 52, 469 A.2d 176 (1983).

The second liability trial commenced November 13, 1984 and resulted in a jury verdict that Beary and Container were equally negligent. However, when the jury returned on November 20, 1984, after a recess, to decide the damages issue, the court declared a mistrial because several jurors had read a newspaper article concerning the case, contrary to the trial court's admonition. The jury eventually impanelled to decide the amount of the damages returned a verdict of $500,000. The verdict was molded to $250,000 for Beary, plus delay damages of $133,424.27 pursuant to Pa.R.C.P. 238. On March 5, 1986, Container's motion for new trial or for judgment n.o.v. was denied. Timely appeal to this Court followed.

Appellee Beary was injured in the course of his employment on September 13, 1976. His employer, Edwards Tank, had entered a contract to construct a 100,000 gallon fuel tank on the premises of Container General Corporation. A mobile crane with an extendable fifty-five (55) foot boom was to be used in the construction of the tank. Steel plates were to be welded together to form the tank. Appellant was to provide the necessary electrical power for Edwards' welding equipment. (N.T. at 56).

[ 368 Pa. Super. Page 67]

Before work could begin, a panel box weighing somewhere between 200 and 500 pounds had to be connected to the source of electricity located in the "batch house." The batch house was located up a narrow gravel road, approximately 174 feet from the construction site. The Edwards crew used the boom of the mobile crane to transport the panel box uphill to the batch house, as was their standard practice (N.T. at 447); appellee Beary walked backwards alongside the box, holding the wires to steady the box while directing the crane operator up the narrow road. (N.T. at 132-135). Electrical wires were suspended 43 feet above the roadway, 130 feet from the construction site, between the construction site and the batch house. As Beary proceeded, facing the crane and walking backwards uphill, the boom of the crane came into contact with the electrical wires. Beary was severely injured as a result of his exposure to the electrical current.

On appeal, Container raises the following questions:

I. Was [Container] free of causal negligence so as to entitle it to a judgment n.o.v.?

II. Did [Edwards Tank] the independent contractor create a dangerous condition on the land of [Container] that [Container] was not required to anticipate so as to entitle [Container] to a judgment n.o.v.?

III. Did the lower court err in permitting [Beary's] expert to testify on the basis of matters beyond the record to opinions on ultimate issues, which opinions were confusing, misleading and prejudicial to [Container] so as to entitle [Container] to a new trial?

IV. Did the lower court err in granting [Beary's] points for charge Nos. 9, 13 and 15 when the evidence in the case failed to support said charges so as to entitle [Container] to a new trial?

V. Did the lower court err in granting [Beary's] points for charge No's. [sic] 6 and 18 when the evidence in the case failed to support said charges so as to entitle [Container] to a new trial?

[ 368 Pa. Super. Page 68]

VI. Did the trial court err in assessing Rule 238 delay damages during periods while [Container] had a directed verdict in its favor?

We shall address each question seriatim. Initially, we note that our sole duty on review of a denial of judgment n.o.v., or refusal of a new trial:

McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 442, 450 A.2d 991, 993 (1982).

I.

Container first argues that the record is devoid of evidence establishing any causal negligence on the part of Container. Specifically, Container argues Beary failed to show that:

[Container] knew or should have known of the existence on its land of a condition which involved an unreasonable risk of harm to [Beary], that [Container] should have expected that [Beary] would fail to protect itself against the known danger, and that [Container] failed to exercise reasonable care to protect [Beary] against said danger.

(Container Brief at 10). Container's argument is premised upon Beary's alleged failure to demonstrate Container's liability under Section 343 of the Restatement of Torts, Second, which provides in part:

ยง 343. Dangerous Conditions Known to or Discoverable by Possessor

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

[ 368 Pa. Super. Page 69]

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them ...


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