*1 are granted. bribery have been If accusations of Brad’s would not entitled to a divorce and plaintiff be true, decree his favor have to be set even aside, under the majority opinion which admits the not plain- Jean. The does discuss majority opinion tiff’s affi- it describes Brad’s alleged bribery; merely mother davit evidence favor of his cumulative took cumula- and assumes that Court Superior “in tive effect into consideration rejecting petition remit”. for the Unfortunately majority’s assumption, Superior petition Court did dismiss defendant’s at all. or even mention the or the affidavit petition more unjustifiable, put majori- Even is mildly, ty’s assumption that the trial would disbelieve judge Brad and continue believe the trial Jean, although had not seen Brad heard his judge story. plaintiff
If unknown to the adultery evidence of then in the opinion holds, majority as the admissible, at least remit the justice majority interest should reopen directions to to the court below with record hearing considering and after proceedings Brad make such Sweet, made by accusations grave the divorce case as may the merits of decision on just. proper Company, Ap- Light & Power v. Edison
Brillhart pellant.
Argued May Before C. J. Drew, Stern, JJ. Stearne, Ladner Jones, Bell, Chidsey, Burg An I. Shadle, him Robert Anstine, W. Ports & Fisher, Horace Ports and Shadle, stine & G. Mag, appellant. for Liverant, & him Markowitz
Arthur Markowitz, appellee. 27,1951: June Opinion Mr. Justice Jones, Company appeal by Light & Power the Edison This remittitur) against (after entered is from plaintiff jury’s administra- favor on a verdict individually damages children and her due her trix for At wrongful trial, her husband. death of for the company, *3 Bort- J. Norman the electric were defendants premises ac- the fatal the on which of the owner ner, employer the Strickland, P. W. and cident occurred, upon brought Strickland had the deceased. of by defendant the other two additional an the record as jury in favor also found (original) The defendants. Bortner and Strickland. of the defendants plaintiff’s the decedent, Frederick Brillhart, Charles pipe, a a metal which he and when electrocuted was well-pump installing in Bort- a on were worker fellow unin- a in contact with came ner’s farm, company, carrying the electric sulated wire inserting pipe electricity. The the into volts necessary operation installation a the a was well pump which work Brill- in Bortner’s new employer had undertaken under contract hart’s Bortner. company judgment filed motions
The electric by both of new which trial, for a were denied and n.o.v. judgment entered and on the re- below, court the appeal already by stated. This the verdict duced company followed. electric appellant
As to motion for n.o.v., its contends the evidence to show on negligence that fails contrib- that the deceased part guilty and In support as a matter of law. utory negligence n error appellant ascribes the new trial motion, in evidence photographs trial court’s admission certain accident when taken after the scene struc- made attendant had been changes material in evidence to admit refusing tures regard safety standards appellant offered Bureau Code of Federal the Electrical fixed The also the ver- appellant urges of Standards. is still excessive and by remittitur, as reduced dict, inconsistent in that held fatally it liable while exonerated company Bortner. defendant and his deceased in which T. working one S. were workman, Hause,
fellow feet square accident was 10 the time of Bortner’s on a dwelling to the side It sat high. feet It a foundation. had door the front stone toward adjacent in each side and window dwelling a trap the center of the roof there was front. In hatch 18 inches the opening square, door or covered below. The which pump pipe being directly installing long; and, were the two men had attached a short elbow they end it, at one In *4 angles main right pipe. which projected of the the pipe the end into well inside the to get order and co-worker the Brillhart his pushed pump-house, in the one of the through windows pipe end of elbowed the or trap-door opening hatch and out up and of the pipe end was position until the lower roof of the stage operation was When reached, the well. upright position approximately in an with was the pipe above the roof the length pump- two-thirds the men holding pipe Both were both house. hands. Brillhart other had one hand above the and below Hause’s hands. While in that the workmen were the upper part of the came contact position, pipe the pump- uninsulated the wire above and Brillhart house was killed the electric instantly through current conducted the the body his pipe Hause received burn on the ground. hand.
The wire which the touched one of two wires east north parallel running and west along of Bortner’s property, suspended there edge being be- apart. two 175 feet These poles tween each wires car- ried 4600 volts were three-sixteenths current, of an inch diameter and were uninsulated. The south- passed ernmost but north along wire above the side of distance between the pump-house, and the wire being roof feet. The pump-house wires while up been put had had been . forty “Around . . years there even more.” pump- always had had the door in roof trap house to be purpose permitting, pipes run out of the when needed they replaced to be well years the sixteen repaired. During the wires had or they had up prior accident, become black- and the or flash shine ened weather copper the “wire looked as gone though so From the like ground, appeared insulated.” “house wires” which there ordinary was a “maze” 14 in the immediate about 12 vicinity “There were some and trees pump-house. shrubbery The household wires were around.” but visible, wires could not be seen “. . you . unless If a little. you looked yourself strained up air, but not could see close to them, where the you men There was no working.” warning posted were to give of high voltage of the presence notice wires. One testified witnesses defendant’s according to the industry “Wires should have a standards clear- *5 312' and building twenty feet above
anee of eighteen As already roads.” noted, above public by only cleared nearest wire deducible from mathematically feet. An inference of standard which was is that pipe, ap- top above the protruded length, 14 feet. proximately to sufficient amply case was evidence on defendant’s
carry
question
it to /the
A
of electric
supplier
current
negligence.
causative
to
the extent of the
only
danger,
“is bound not
know
to
highest
of care
very
degree
practicable
but
use
everyone
may
who
be
injury
lawfully
prox
avoid
and
liable
come
or
accidentally
to its
imity
them”:
v.
in contact with
Edison
Fitzgerald
otherwise
200
Illuminating Company,
Electric
Pa.
A.
50
540, 543,
v. Pittsburgh Railways
363
161;
Company,
Kaufman
2d 90;
69 A.
Commonwealth Trust
Pa.
Com
96, 100,
v. Carnegie Illinois Steel
pany
Pittsburgh
Company,
44 A. 2d
Sebok
Penn
153-154,
353 Pa.
v.
150,
594;
Edison
331 Pa.
Company,
1
524,
A.
sylvania
527-528,
Philadelphia
v.
Electric
Ashby
2d
328
680;
Company,
and
887;
195 A.
v. Penna.
MacDougall
Pa.
478,
474,
311 Pa.
Light Co.,
387,
Power &
As to the on the contributory be is to borne deceased, that mind part is not bound the high public general degree from danger electric respect is foresight wires as them. maintaining “Wires company charged be may current harmless or they electric be may an degree dangerous. difference in this highest apparent ordinary not respect observation, is while therefore, presumed to public, know are not bound to may present, know de- danger case”: v. particular Fitzgerald Edison any gree Illuminating Company, As supra. Electric we recently Company, Railways v. Pittsburgh said Kaufman plaintiff course, at p. was, supra, 100,—“While from electricity that more or less danger hound to know not in the transmission he was inherent line, knowledge with as a as to chargeable high degree extent of the as was main danger company which the line.” Of duty tained and operated course, working one around which he knows wires, is a to avoid contact carry voltage, coming v. Sayre Electric 258 Pa. Ridgeway with them: Co., & A. v. Power MacDougall Penna. 123; 400, 410, there Light p. But, Co., supra, shred in this case decedent either evidence saw *7 high seen the voltage should have wires or of the knew from them possible danger removal of the pipe Any question from well. Brillhart’s contributory for the to negligence was, circumstances, Not could the court possibly determine. have declared fault him as a matter to have of law. did not err in The trial court the electric excluding prove offer to company’s standards promulgated by the Electrical Code Federal Bureau of Standards and location of for the electric wires. height The ques- tion the electric company’s negligence the prem- depended upon ises whether its maintenance voltage wires a high was what reasonably prudent person have done in the the offer Moreover, circumstances. prove by standards Bureau indicated records but by what orally say they a witness would were. The testimony under objectionable obviously “best evidence” The was allowed to testify rule. witness followed general practice companies with and location height respect high wires proved to incidentally, require which practice, greater than what was actually clearance followed in the here involved. instance concern- to the objection testimony
The appellant’s the in the location of changes certain made ing after the and in the hatch voltage merit. The was not ad- accident is without the defendants the prior mitted to show negligence but was received in evidence with- obtaining condition out ac- objection explanation, purposes taken photographs scene, several curacy, time been admitted accident, some after which had could appellant whereof only thing evidence. was the trial exercise complained have court’s logically in evidence. admitting photographs of discretion on that score After the urged here.) (No question had been admitted in then photographs evidence, necessary changes eliminated explana- tory appellant’s counsel testimony; that, acquiesced It tacitly. at least was not until near the close witness’s examination that defendants’ counsel belat- that “. . saying . it was not until edly objected, I witness had finished that realized that he had made a number of statements which objection- we considered able.” The trial judge very properly responded,— “. . . in all to the fairness objection Court, should have been made at the time.” Counsel then expressed “. his confidence . . that the Court will that point cover *8 in its . . .” . The trial charge judge at once explained to the that jury testimony had been “. . . admitted only show what the conditions September were on 14, the date that the accident 1946, . happened . . .” And, in his the trial charge, judge expressly cautioned the testimony with reference to some change and in the line “any indica- tion whatever of any negligence.” the court Finally, affirmed a point for unqualifiedly charge submitted by defendants, touching very point here in question, which counsel for defendants affirmatively acknowl- All was covered. edged appropriate steps to guard having against any harm to the possible defendants the appellant thus will not now be heard taken, complain further. The Bortner verdict absolving holding the com- liable was no sense inconsistent. pany The duty them severally resting upon vastly care different Bortner neither owned nor had degree. control over installation. wire high voltage by as reduced The cannot verdict, remittitur, to be excessive. be said reasonably affirmed. Judgment by Opinion
Dissenting Mr. Justice Bell: by opinion The of care required majority degree too and too imposes impractical too great, unreasonable, ruled the defendant. This case is upon a burden Phila of the defendant v. in favor O’Gara principle A. In Pa. delphia Electric Company, company electric had its uninsulated that case the above 8 or 10 feet the sidewalk electric where A year boy pole old children seven climbed played. an while awning walking this along supporting in contact came horizontal- uninsulated pole aof entry The n.o.v. was affirmed wire. Court on the had ground company height anyone at a inaccessible by its wires maintained use of the or usual sidewalk and it was in the ordinary usual against only ordinary and to guard bound anyone nor boy Neither law premises. use to defendant’s wires was likely fully proximity them. contact come neglected majority mention in
Moreover, facts: the decedent very important (1) two opinion the defendant’s wires were strung where exactly knew pump-house; (2) he nearest wire entered when feet above hut roof, not only *9 the hatch opening horizontally away 5was from and if the decedent had roof, in the into fall a distance of 5 feet let his negligently hap- accident never have defendant’s wire, pened. I would enter these reasons
For non veredicto. obstante defendant Hickey, Appellant.
Miller v.