Jowett v. Pennsylvania Power Co.

Opinion by

Mb. Chief Justice Hobace Stebn,

Our State Reports contain an extraordinarily large number of decisions of cases dealing with deaths and severe injuries to persons accidentally touching high tension wires, but while they enunciate general legal principles governing the subject each depends largely upon its own particular facts. The present is apparently the first case in which the happening of a tragic accident of that nature was caused by a television antenna — which its owners were engaged in repairing— breaking and coming into contact with the lines of a public utility company.

Marjorie Jowett, Administratrix of the estate of her deceased husband, Lee A. Jowett, and Jonathan Jowett, the father of Lee A. Jowett, are the plaintiffs in this action. Lee was killed and Jonathan burned by a bolt of electricity from the wires of the defendant, the Pennsylvania Power Company. The Jowetts lived in a house on the east side of Mill Street, in Clarksville, Mercer County, extending 36 feet along the street and of a depth of 18 feet; the distance from the ground to the peak of the roof was approximately 22 feet. Along the street was a line of poles on which were strung four wires belonging to the defendant company and two to the Bell Telephone Company. Of the defendant’s wires the top ones, which were primary or distribution wires, carried a charge of 7200 volts; the lower ones were service lines supplying the street lighting in Clarksville and carried only about 115 volts. Defendant’s wires were installed in 1938 under permission of an ordinance of the municipality; they were at a height of about 39 feet above the ground and 22 feet above the peak of the roof of the house.

At some time during the Christmas week of 1951 the Jowetts installed an aerial on the south side of their house. It consisted of two pieces of ordinary galvanized pipe one and a quarter to one and a half inches in diameter; one of the pieces was 21 feet long and the other 26 feet 6 inches, and they were connected by a threaded coupling one and three quarters inches in length. The overall length of the pipe being 47 feet 6 inches it therefore projected some 25 feet above the roof; the coupling was a foot below the ridge of the roof. The pipe was placed on a piece of slag in a hole about a foot and a half below the surface; it was fastened against the side of the house by two metal clamps or “U” bolts, one midway between the ground and the roof, the other at or immediately below the roof. Near the top were the cross-pieces or prongs of the antenna which made up the receiving apparatus and each of which extended out 4 feet 7 inches. The entire aerial was secured in its erect position by the two clamps and by four guy wires, one to each corner of the roof; these were fastened to the aerial about 3 feet below the bottom of the antenna or some 8 feet below the top of the mast.

On January 18, 1952, as the result of a severe windstorm the southeast guy wire was torn loose from the aerial, and two days later the two Jowett men set out to repair it. Since the prospective reattachment of the guy wire to the antenna would have been at a considerable height above the roof the Jowetts planned to lower the antenna so that it could be the more easily reached; to this end they planned to lift the pipe from out of the ground and move the bottom of it away from the wall until the top would be brought down sufficiently for their purpose. They loosened the lower of the two clamps but neglected to remove the upper one. They extended the size of the hole in order to facilitate the raising of the pipe and were in the act of lifting it and drawing the butt away from the wall when it broke at the coupling immediately below the roof. It appeared later that the two lengths of pipe had been coupled together in an extremely defective fashion in that, while one of them extended into the coupling an inch and a quarter, the other had been screwed in only about a quarter of an inch. Who had coupled the two pieces together in the first instance or to what extent, if any, the Jowetts had knowledge of the defect does not appear in the testimony.

The result of the breaking of the pipe was that the upper portion fell on the roof in such manner that either the tip of one of the prongs of the antenna came into direct contact with one of defendant’s high tension lines, or so close to it as to permit the formation of an arc, and the Jowetts, holding the lower section of the pipe, were immediately shocked, Lee Jowett being electrocuted and Jonathan Jowett severely burned; the ground on-which they were standing was wet and a drizzling rain was falling. It appeared that Jonathan Jowett, the father, 52 years of age, had been engaged for 25 years in the business of installing neon signs and therefore accustomed to working with electricity, while Lee Jowett, 31 years of age, had also been 7 years in the neon sign business. Jonathan Jowett, the survivor, testified that he did not know that the two top lines which ran in front of the house were high voltage lines.

■ At the conclusion of plaintiffs’ testimony the court granted defendant’s motion for a compulsory nonsuit which it subsequently refused to take off, and from such refusal plaintiffs now appeal.

• There is, of course, no question but that defendant had a perfect right to maintain and operate its lines in the position which they occupied, and, on the other hand, the Jowetts had also a perfect right to erect and maintain their antenna on the side and above the top of their house where they had placed it. Plaintiffs do not claim that the wires were in undue proximity to the.house or that they should have been insulated; (it was-testified that such insulation would have been impracticable). The only ground on which they assert a liability of defendant was its failure to warn them that two of its wires were carrying so high a voltage that contact therewith would have been extremely dangerous if not fatal. It was brought out in the testimony that defendant had written a number of letters to various property owners having antennae above their roofs warning them of the proximity of the high tension wires and of the possible danger of the antennae breaking or being blown over by a storm into contact with defendant’s lines, and plaintiffs contend that defendant should have given similar notice to them after it knew or should have known of the location of their antenna. In that connection they attempted to show that one of defendant’s meter readers, who incidentally was charged with the duty of reporting any construction that might be considered a hazard, actually or presumably saw plaintiffs’ antenna á couple of weeks before the accident happened. Defendant denies this, but even if we were to assume that it 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? Being at a distance of some 22 feet from defendant’s lines, the antenna was apparently well out of harm’s way under all normal and likely conditions. What defendant might have been bound to take into consideration was the possibility that the antenna might, through some natural cause or agency, come into ■ 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.

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; there is no such duty to apprehend that an intervener will, either wilfully or carelessly, bring about a result which would not have been occasioned by natural forces or ordinary events. Thus in Geroski v. Allegheny County Light Co., 247 Pa. 304, 93 A. 338, it was held that an electric company maintaining heavily charged wires 29 feet from the ground and 12 feet from a building could not reasonably be held to anticipate that the janitor of the building in attempting to hoist a flag on a pole by means of a copper wire would manipulate the wire from his position on the ground in such manner as to bring it in close proximity to the electric wires, thereby resulting in a shock causing his death. There are several cases cited in the opinion in that case of somewhat similar nature in which a defendant electric company was likewise exculpated from liability. In Mirnek v. West Penn Power Co., 279 Pa. 188, 123 A. 769, it was held that the defendant was not required to foresee that that which had been safe would become harmful by reason of the action of a third party, and that, in the erection and maintenance of its poles, wires, and other appliances, it was bound to anticipate only such combinations of circumstances, and accidents and injuries therefrom, as it might reasonably forecast as likely to happen. Thus, in Trout v. Philadelphia Electric Co., 286 Pa. 506, 84 A. 967, where a boy, endeavoring to detach a kite from an electric wire strung some 4 feet from the cornice of his house, threw a string over the wire in order to pull it towards him and received a shock which resulted in his death, the court said (p. 509, A. p. 968) : “The act of the boy in getting hold of the wire was wholly unrelated to any act of the defendant in connection therewith. Had the wire been so close to the house that the boy might naturally have come in contact with it while playing about the roof, it might be contended that its condition was the proximate cause of his death. But such was not the case; . . . The boy could have run and played all over the roof without the possibility of his coming in contact with these wires. It was an original independent act of the deceased which could not reasonably have been anticipated that brought about this most sad accident, and the act was not induced by or did not follow as a natural sequence to any negligence of the defendant in connection with its wires. Under such circumstances there could be no recovery, and the defendant was entitled to binding instructions as requested.”

There are many cases in the books fixing liability upon a power company where its wires were in such close proximity to a place where persons would ordinarily be engaged in carrying on their work that they were likely to come into contact therewith. The present, however, is not such a case. 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 contacting 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 115 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. It is true that while the ordinary person is held to know that it is dangerous to come in contact with, or in close proximity to, electric wires and it is his duty to avoid them so far as he may, Haertel v. Pennsylvania Light and Power Co., 219 Pa. 640, 643, 69 A. 282; Aljoe v. Penn Central Light & Power Co., 281 Pa. 368, 371, 126 A. 759, 760, he would not be bound to know the extent of that danger in any particular case whereas the company owning and operating such a dangerous agent would be obliged to have such knowledge and to observe care accordingly: Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, 543, 50 A. 161; Brillhart v. Edison Light and Power Co., 368 Pa. 307, 313, 314, 82 A. 2d 44, 48. But there was necessarily some degree of danger to be recognized by the Jowetts and averted by them as far as possible when they undertook to repair their aerial, and nevertheless they did not act with wise judgment and all possible care in the manner in which they sought to lower the antenna to the roof of the house. In view of the fact, however, that it was not proved that it was they who had coupled the two portions of the pipe when the aerial was originally erected, or that they knew of its condition, it cannot, perhaps, be said that the way in which they attempted to repair the antenna was so obviously careless and ill advised that they should be held guilty of contributory negligence as a matter of law.* 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.

It is true that ordinarily the question of proximate cause is for the jury, but it becomes one of law when, as here, the undisputed facts make it clear that the negligence alleged did not cause the injury: Frisch v. Texas Company, 363 Pa. 619, 622, 70 A. 2d 290, 292, and cases there cited; see also Elliott v. Allegheny County Light Co., 204 Pa. 568, 54 A. 278; Helmick v. South Union Township, 323 Pa. 433, 439, 185 A. 609, 611, 612.

The order refusing to remove the compulsory non-suit is affirmed.

* The court below did hold that the Jowetts were guilty of contributory negligence, saying that “Four men had erected the aerial and during the process they had been careful to secure the aerial by guys and hand lines so that it could not faU. Nevertheless when the two came to repair it, knowing that the guy wire at the southeast corner was loose and that possibly it might faU toward the power lines, they proceeded to lift, one on each side of the pipe. Because three of the wires remained fastened, tension and a drawing of the aerial toward the power lines was bound to ensue as the resultant of forces. The two men did more than lift. They drew the butt of the pipe out from the wall. There was no point in raising the pipe unless they also drew it out from the wall so that the tip would be lowered to a point where it would be within reach of the roof so as to permit reattachment of the guy wires. This induced two new kinds of strain. First the weight of the antenna on the end of the long pipe and the pipe itself would tend to break the pipe as it reached a position near the horizontal; Second, the U bolt at the peak of the roof was not removed or, as far as is disclosed by the evidence, even loosened. To pull the butt of the pipe out and up would require that the clamp bend or break and would add to the strain caused by the weight of the antenna. The pipe actually broke about a foot below the clamp.”