Jowett v. Pennsylvania Power Co.

Dissenting Opinion by

Me. Justice Musmanno:

On Christmas Eve of 1951, Jonathan Jowett gave to his son, Lee A. Jowett, and his family, what is perhaps one of the most attractive gifts that can today be bestowed upon one in moderate circumstances — a television set. Between Christmas Day and New Year’s Day, Jonathan and his son, together with two or three other persons, erected an aerial for the accommodation of the television, this aerial consisting of a pipe some 48 feet high, planted in the ground and rising to a height of 25 feet above the roof of the house where it was surmounted by appropriate antennae.

On January 18, 1952, a severe storm tore one of the supporting guy wires loose, a lead-in wire broke, and, as a consequence, the magic of wireless drama, music and song ceased in the home of the Jowetts. The members of the household immediately complained and on the following Sunday, January 20th, Jonathan Jowett arrived, assuring them that he and his son Lee would repair the magic apparatus in time so that, as the grandfather described it, “the kids could see this 5 o’clock kid show. Something comes on at 5:00 kids like.” The repair job was a simple one: it meant lowering the antennae to the roof of the house so that a new guy wire could be attached and anchored, the lead-in wire re-connected, and the aerial re-hoisted. In order to accomplish this operation, Jonathan and Leé lifted the base of the aerial pipe out of the ground, intending to move it horizontally a sufficient distance so as to lower the crest of the aerial within reaching distance on the roof. While engaged in this maneuver, a bolt of electricity fell like a flash of lightning and struck them *340both, killing Lee ontrightly and inflicting severe injuries to Jonathan.

It appears that the moving of the aerial subjected the coupling between the two pieces of pipe, which composed the aerial, to a strain which caused it to part at this point, and one of the prongs of the antennae fell against a high tension wire of the defendant power company thus transmitting its high voltage to the aerial, the base of which was in the hands of the two men on the ground.

Jonathan Jowett and Marjorie Jowett, administratrix of the estate of Lee. A. Jowett, brought suit against the Pennsylvania Power Company, charging it with negligence in the erection and maintenance of the transmission line. There was nothing about the company’s wires to acquaint the average person with the knowledge that they carried death-dealing electricity to the tune of 7200 volts. The wires were strung on innocent-looking telephone poles which carried also the usual harmless telephone lines. The lower Court entered a nonsuit against the plaintiffs and the majority of this Court has affirmed the nonsuit. I cannot agree.

This Court has said repeatedly that: “In a negligence case a nonsuit can be entered only when it is inconceivable on any reasonable hypothesis that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous tó the plaintiff, could determine in his favor the controlling issues involved.” *

Liké a phonograph record that has been played so often that no listener follows the melody and much less the meaning of the words (if any), the rigid standard *341of nonsuits laid down by this Court in the cases cited is, according to my observation, rarely followed. Certainly it was not followed in the case at bar, for I cannot assent that it is inconceivable that on any reasonable and legal hypothesis it was impossible for culpable negligence to have been present here. The granting of a nonsuit is one of the most drastic procedures accomplished in a courthouse, and, in my opinion, it should not be invoked unless the plaintiff’s case is so obviously opposed to reason, natural law, and the immutable sequence of cause and effect that it would be folly to consume time deliberating on it. A nonsuit shuts off one-half of the case which, even though coming from the opposing side, might still supply illuminating facts which would assure the ideals of Justice that no one’s cause is being dismissed amid the shadows of indecision and the dusk of troubling doubt.

This case deals with a comparatively new phase of science. Law must never lag behind science but keep pace with it, and there is no reason why progress in technology should be made at the expense of human rights. Technology and civic prerogatives may travel together so that whatever hazards follow in the wake of science, as it moves forward in its conquest of the mysterious forces of the universe, may be met and overcome in behalf of the human race for which the progress is being made. Otherwise progress is a misnomer and mankind is bound for destruction.

I believe we can say without fear of contradiction that television is here to stay, and I believe that the law will adjust itself to all the new problems which this new industry may create in the field of jurisprudence. I fear, however, that the Majority Opinion fails to analyze the case before us in the laboratory of objectivity but disposes of it entirely as a matter of dialectics. In studying this television case we might *342first contemplate what happened first and then proceed to what happened last. The Majority Opinion I believe operates in the wrong channel of reasoning when it says: “What is entirely clear is that the actual and proximate cause of the accident was the defective condition of the coupling, which, without proved negligence on the part of either party, broke under handling by the Jowetts and thereby brought about this wholly unanticipated and fortuitous fatal occurrence.”

The actual and proximate cause of the accident was not the defective coupling but the failure of the defendant company to notify the Jowetts of the mortal danger lurking in their transmission wires. In Mars v. Mead-ville Telephone Co., 344 Pa. 29, 31, this Court said: “The rule is thus stated in Cooley on Torts (1st ed., p. 70; 4th ed. 850) : ‘If the original act was wrongful, and would naturally, according to the ordinary course of events, prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not wrongful, the injury shall be referred to the wrongful cause, passing by those which were innocent.’ ”

In Murray v. Frick, 277 Pa. 190, 194, we said: “One who negligently creates a dangerous condition cannot escape liability for the natural and- probable consequences thereof, although the innocent act of a third party may have contributed to the final result.”

Television has become as much a part of the standard American home as central heating, screen doors, and a dog. No one can install close to a home any electrical device peculiarly dangerous to TV antennae and plead lack of knowledge of the perilous affinity between the device and the TY apparatus. The Majority says: “What defendant might have been bound to take into consideration was the possibility that the antenna might, through some natural cause or agency, come *343into contact with their wires, but it was certainly not obliged to anticipate that human intervention, aided by the existence of a careless defective coupling, would bring about an accident such as that which happened.” (Emphasis in Majority Opinion.)

The human intervention here was secondary. It was not the defective coupling which ignited the fuse of lightning which destroyed Lee Jowett and seared his father with horrible burns. It was the storm.

The Majority says that the defendant company might have been liable if the antennae had come into contact with its transmission lines “through some natural cause or agency.” Storms in the Temperate Zone are as natural a phenomenon as sunshine itself. The person or company that does not anticipate the agitation of the elements and make provision against its violent results is improvident indeed and cannot escape responsibility when those elements use his equipment to strike down the innocent and the unwary.

The telephone company well knew that the proximity of television antennae to its transmission wires was the nearness of flame to combustible substance. So aware was the company of this highly perilous circumstance that it wrote letters to some owners of aerials as follows: “The aerial which you have erected is in a location where it might fall into the lines near your premises. We are writing to call this to your attention so that you may take whatever steps are necessary to protect your premises from any hazard.”

But the company wrote no letter to the Jowetts.

The Majority suggests that because Jonathan Jowett and his son had been engaged in the business of installing neon signs that, in some manner without explaining how, they could have averted the accident. There was nothing to put them on notice that the lines on the telephone poles were high voltage lines. The *344wires were strung 39 feet above tbe ground and gave every indication of being as innocuous as tbe sparrows which twittered about its silvery strands. A Mr. Kennedy who occupied one-half of the house inhabited by the Lee Jowetts testified that he thought the tension wires were telephone wires. Wayne Thomas, who often visited at the Jowett’s home was of the impression the high tension wires were the same as the service wires which entered the house. Rev. Johnson, minister of a church close to the Jowetts home, assumed that the high tension wires were no different from the docile wires which supplied the power for his own house.

Although people living in the immediate vicinity of the Jowetts were lulled into a false security regarding the nature of the defendant’s power lines, the defendant was thoroughly aware of the devil’s fire which coursed through the slender conduits; and it was its duty to inform everyone, not only a chosen few who received letters, of the kiss of death that could be expected from the harmless looking “telephone wires.” Numa F. Yidal, division manager of the Pennsylvania Power Company, testified directly about the hazards of television aerials close to high tension wires: “Q. Is such an aerial remaining upright so long as it remains upright, is it a hazard? A. Yes. Q. Why? A. Because in falling, it might hit the wire.”

The Majority properly says that: “All liability for negligence rests upon a reasonable duty to foresee the likelihood of the happening of an injury apt to result from one’s act.”

Who is to decide the applicability of that reasonable duty? As I read the cases, it is the jury. In Brillhart v. Edison Light and Power Co., 368 Pa. 307, this Court said: “The evidence in the case was amply sufficient to carry it to the jury on the question of the defendant’s causative negligence. A supplier of electric current is *345'bound not only to know the extent of 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’ (cases cited.) 'When human life is at stake, the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense.’ ” *

''Although a minimum clearance for high voltage wires strung over buildings and land has not been statutorily prescribed, the common usage in the business is a fair test or standard of care, (citing cases.) As stated in Loelsch v. The Philadelphia Company, 152 Pa. 355, 362, 25 A. 522—'While no absolute standards of duty in dealing with such agencies can be prescribed, it is safe to say in general terms that every reasonable precaution suggested by ewperienee and the known dangers of the subject ought to be taken”

In pointing out that the defendant’s high tension wires in that case were too close to the property of the injured party, we said: ''Having failed to observe any active precautions, which experience reasonably should have suggested, the defendant could at least have taken the passive precaution of warning others of the dangerous wires by posting notices of their proximate presence.”

But the defendant company here posted no notices, it distributed no warnings to those who lived on the street the Jowett home bordered. Not only was the company passively negligent in this respect; it was actively negligent. One of its meter readers, Gladding Wiburt, testified that he was instructed by his employer to report the hazard of television antennae located *346close to high tension lines. On January 18, 1952, only 12 days before the tragedy, he inspected the meter at the house occupied by Lee Jowett and family but failed to note the presence of the antennae. I submit that this failure on his part to note what was so obvious was a negligent act chargeable to the defendant company under the rule of respondent superior. Although Wiburt testified that he did not see the antennae, his meter book carried a notation on the back of the page dedicated to the house in which the Jowetts lived, namely, “TV Aerial.” This item of evidence was something to be presented to the jury for evaluation in connection with the question of the charge of negligence.

The Majority mentions the meter reader’s testimony only to dismiss it with the rhetorical question: “Even if we were to assume that it [the corporation] did know, or should have known, of the existence of the aerial, was there any duty upon it to give the warning claimed by plaintiffs?” I would answer that question with another question: “Why shouldn’t it give warning?” If a railroad engineer is required to blow a whistle as his train approaches a crossing, certainly the conveyor of a train of 7200 life-extinguishing volts should be required in law to give warning to those who are in the immediate vicinity of its fulminating trajectory.

The defendant company argues that if the plaintiffs were, allowed, to recover here, the company would then have to continue elevating the heights of its poles above television aerials, to patrol its territory to watch for new television aerials, and place its poles in the highway at remote distances from built-up areas. These hypotheses are entirely irrelevant. A litigant may not ask for an adjudication in his favor by conjuring an exaggerated state of affairs and expect a decision on a purposeful hyperbole. We have a specific situation here *347which, as I view all the facts, reveals, prima faciedly at least, indifference on the part of the defendant company to the safety of people lawfully about their affairs. In Brillhart v. Edison Light and Power Co., supra, we said: “When human life is at stake, the rule of due care and diligence requires everything that gives reasonable promise of its preservation to be done, regardless of difficulties or expense.”

But the company here could have disobligated itself of its obvious responsibility without any undue expenditure. It would have been a very simple matter to notify all the company customers to keep their television antennae safely distant from transmission lines. A cheaply printed handbill could have been circulated by the meter readers to the power corporation’s clients, including the Jowetts. The defendant’s failure to take the precautionary measures which the circumstances so obviously dictated, raised, as I view it, a question of fact for the jury as to whether the company had met its responsibility of due care toward those who had the right to expect that due care.

The Majority makes the rather strange assertion that even if the Jowetts had received warning of the danger in the transmission lines the accident would still have occurred, and in support of this anomalous conclusion the Majority argues as follows: “Indeed, concerning defendant’s duty of warning the Jowetts, it is clear that even if such a warning had been given the result would have been the same because Jonathan Jowett frankly admitted that while, if he had known of the danger of contracting the more highly charged wires he would, in preparing to take the antenna down, have put a hand line on it and tied it to the east side of the house so as to pull the antenna away from the wires, he would have done the same thing if he knew the wires carried a charge of only 500 or even *348115 volts; obviously the reason he failed to take any such precaution was because he either was unaware of the defect in the coupling or, knowing of it, carelessly ignored the danger it created. Even if, therefore, there had been any duty on the part of defendant to warn the Jowetts under the circumstances of this case, the failure to give such a warning was not the cause of the accident that occurred.”

This exposition is not only involved and perhaps confusing, but whatever may have been its intended meaning, it is not supported by the record. This is what Jonathan Jowett said: “Q. Now, Mr. Jowett, I ask you to assume that you know that within 22 feet of this television antenna as erected and as the situation was when you started to work on it with your son, had you known of this danger, how would you have gone about taking this antenna down? A. I would have put a hand line on it, a small rope and tie that other end of the small rope to the east side pulling over toward the east side of the house. Q. And the purpose of that? A. That would never have left the television antenna go over into the wires.”

I do not see how from this testimony the Majority draws the bizarre conclusion that had Jonathan known of the high voltage in the overhead wires the result would have been the same. Had the Jowetts known that the cross-arms of the inoffensive-looking telephone pole was a potential gibbet ready to ensnare them in its lethal grasp, they wonld indeed have given it a wide berth. Life is sweet and it cannot be lightly assumed that Lee and Jonathan Jowett would have, with insensibility and recklessness, permanently darkened, for their children and grandchildren, the television screen of their continued existence.

I dissent.

Virgilio v. Walker, 254 Pa. 241; Ehrlich v. U. S. Fid. & Guar. Co., 356 Pa. 426; Stewart v. Loughman, 367 Pa. 492.

Italics mine.