Stimmel v. Kerr
Stimmel v. Kerr
Dissenting Opinion
Dissenting Opinion by
I would reverse the Order granting a new trial, and I would affirm the Judgments which were entered on the verdicts in favor of defendants.
Opinion of the Court
Opinion by
The appellant, one of the defendants in a trial arising out of two actions of trespass to recover damages for the deaths by electrocution of two decedents, ap
The facts surrounding the accident reveal that both decedents, employes of a rigging and hauling contractor, were assigned to deliver steel trusses to the farm of defendant Kerr. After being instructed by Kerr’s agent where the steel trusses were- to be placed, the decedents proceeded to unload the trusses by means of an A-frame. The two decedents backed into the field in a stooped position. The truck containing the A-frame (which suspended the steel truss one foot above the ground) was also being driven backwards in the field. The A-frame contacted the transmission wires maintained on a West Penn Power Company right-of-way fatally electrocuting both decedents.
This instruction was submitted by defendant Kerr and read to the jury by the court: “If you believe . . . [decedents] could have seen the wires or poles if they had looked, then your verdict must be for the defendant, Kerr, and for the defendant, the West Penn Power Company.?’
The import of the court’s charge was tantamount to a directed verdict and clearly indicated that the mere presence of the wires' or the poles was sufficient warning to place the decedents on notice of the danger and completely relieve the landowner of liability. We have consistently held that the duty incumbent on a possessor of land as to a business visitor is to keep the premises reasonably safe or to warn of dangers existing thereon which the occupier knows or should know exists. However, this affirmative duty is not required of a possessor of land if the danger to be warned against is an obvious one. McCreery v. Westmoreland Farm Bureau Co-operative Assn., 357 Pa. 567, 570, 55 A. 2d 399 (1947). See Restatement, Torts §343.
Since mere presence of power lines does not indicate an obvious danger, the presence of poles also does not constitute notice of such a danger. Poles are merely used as a foundation or support for overhead insulated and uninsulated electric wires, telephone wires, television lines, and “canned” music lines. While we have held that massive steel towers carrying electric wires would conclusively indicate the danger of high voltage transmission lines, cf., Yoffee v. Penna. Power & Light Co., 385 Pa. 520, 123 A. 2d 636 (1956), we have not imposed upon the business visitor the burden that knowledge of the presence of poles was such notice of danger as to make him contributorily negligent in the event that he is injured by the electricity flowing through wires carried on the poles. In Brillhart v. Edison Light & Power Co., 368 Pa. 307, 314, 82 A. 2d 44 (1951), the decedent was electrocuted when the pipe he was installing in an enclosed pump house came in contact with an uninsulated electric wire above the
Order affirmed.
Reference
- Full Case Name
- Stimmel v. Kerr, Appellant
- Cited By
- 14 cases
- Status
- Published