# Rank v. Metropolitan Edison Co. > Supreme Court of Pennsylvania · April 1, 1952 · 370 Pa. 107 URL: https://www.frixlaw.com/law-library/cases/9757452 ## Case - **Full name:** Rank, Appellant, v. Metropolitan Edison Company - **Court:** Supreme Court of Pennsylvania - **Decided:** April 1, 1952 - **Citations:** 370 Pa. 107; 87 A.2d 198; 55 A.L.R. 2d 119; 1952 Pa. LEXIS 317 - **Precedential status:** Published - **Opinion:** Dissent by Musmanno - **Judges:** Drew, Stern, Stearne, Bell, Chidsey, Musmanno - **Cited by:** 16 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757452 ## Opinion text Dissenting Opinion by Mr. Justice Musmanno: In my opinion the learned trial Judge gravely erred in. rejecting the testimony of Professor A. R. Miller, electrical engineering expert, on the negligent or non-negligent construction of the poles- and transmission wires, from which issued the electrical impetus which struck Irá K. Rank down in death, like a thunderbolt from the sky. *116 There could be no question about Professor Miller’s qualifications. He was a graduate in electrical engineering of both the University of Illinois and the Ohio University. He had followed electrical engineering for 29 years and was at the time of the trial engaged in teaching that very subject and power construction at the Lehigh University. He was employed as consulting engineer for the Electrical Power Equipment Company and for the Bethlehem Steel Company, and had had five years’ experience in the construction of light and power lines and while he had not constructed a 13,000 volt line he had constructed and maintained a 6,000 volt line and had completed the “lines of transmission” and supplied electrical equipment for a sub station with the capacity of 13,000 volts. When the plaintiff offered Professor Miller as a witness the Court commented: “No, we think that is purely a matter for the jury,” and then sustained the objection of defendant’s counsel which was worded: “We object to this witness testifying as to what was negligent construction of these lines because it is a matter solely for the jury to determine, whether it is negligence or not. The facts are clearly stated here and it is for the jury to determine whether that was negligence or not; it doesn’t require expert testimony.” • As I read the record in this case it was utterly impossible for the jury conscientiously to decide the issue of negligence without some light to open up the darkness which envelops for the layman the whole subject of electricity. How many persons on the average jury can explain the force imprisoned in a slender wire which propels over the surface of the earth tons of metal carrying scores of persons in a vehicle called a trolley car? And how many persons on the average jury would of their own knowledge know about the *117 placing of insulators, guy wires, transformers, breakers, high tension wires (all terms used in this trial), to determine whether the defendant was guilty of negligence or not? A guy wire is simply a wire for anchoring or supporting a pole in position, and, so far as electrification is concerned, is as innocuous as a garden hose. The plaintiff’s husband, Ira K. Rank, unfastened the guy wire involved in this case from the pole to which it was attached — and it apparently had spent most of its supporting strength since it sagged — and carried it over 100 feet without incident or injury. Suddenly at the 140 foot mark, the garden hose became a live serpent that fastened its lethal coil about his person with such deadly tightness that it had to be severed from him with an ax. Somewhere in the trajectory of this hauling, some portion of the harmless guy wire running out of his hands apparently came into contact with an instrumentality charged with high voltage electricity, and the mighty current plunged through the hitherto slack and strengthless guy wire to kill him. Although witnesses described the poles to which the guy wire was attached and there was testimony with regard to various cross wires, insulators and breakers, there was no evidence from which the jury could affix or absolve responsibility for the untimely death of 39 year-old Ira K. Rank. In the case of Laudenslager v. Pennsylvania Power & Light Co., 312 Pa. 169 , 167 A. 778 , this Court approved of an expert witness testifying, (in a case involving death as the result of contact with electric wires,) that the break in wires was due to improper splicing and that the distance between the poles supporting them was too great, causing the wires to break of their own weight. How would the jury in that case have known whether the wires were properly spliced, *118 without the benefit of expert testimony on the subject? In American Jurisprudence, Volume 20, p. 647, we find this discussion on expert or skilled witnesses: “Frequently, the jury, or the court trying a case without a jury, is confronted with issues the proper understanding of which requires scientific or specialized knowledge or experience and which cannot be determined intelligently merely from the deductions made and inferences drawn on the basis of ordinary knowledge, common sense, and practical experience gained in the ordinary affairs of life. . . In such cases, witnesses possessing requisite training, skill, or knowledge, denominated ‘experts,’ may testify, not only to the facts but to their opinions respecting the facts, so far as necessary to enlighten the jury and to enable it to come to a right verdict.” The plaintiff here, as in every case of tort, was charged with establishing negligence on the part of the defendant. How was he to prove that negligence, except with evidence showing faulty construction or maintenance on the part of the defendant company; and who could specify what that negligence was except one trained in that kind of work? In the case of Kaufman v. Pittsburgh Rwys. Co., 363 Pa. 96 , 69 A. 2d 90 , where the accident also involved electricity, the Supreme Court approved of the calling of an expert witness to testify to technical facts not so difficult of ascertainment as those in the case at bar. “The plaintiff charged the defendant with negligence in its failure to maintain the line in a safe condition and in failing to inspect it at reasonable periods. In support of these allegations, the plaintiff called as a witness a concededly well-qualified expert in mechanical and electrical engineering of many years active experience who testified that the span of the transmission line’s suspension in front of the plain *119 tiff’s place of business was unusual and not ‘ordinary-good practice’; that this condition produced a heavy sag in the line of approximately five feet at the place in question which made it a comparatively easy matter for the line to be blown or swayed by the wind into any nearby structure. The expert further testified that the absence of insulating wrapping laid the rubber insulation of the line open to deterioration and to ready abrasion from swinging into and rubbing against the edges of the sign; and that the defective condition of the insulating wrapping of the line was not of recent development but due to the wear and tear from exposure to the elements for ‘at least twenty-five years.’ ” Had Professor Miller been allowed to testify in this case, it is conceivable that his testimony would have demonstrated that Ira K. Rank, in the circumstances of the case, was not guilty of contributory negligence. The rejection of this expert’s testimony crippled the plaintiff’s case and from that point it moved like one with a broken back. This vital disablement of the plaintiff’s proof, in effect, denied Lizzie M. Rank, widow of the dead farmer, of her day in court. The learned trial Judge stated in his opinion refusing to take off the non-suit which he imposed, that the question of negligence was moot since the proof of contributory negligence was conclusive. But there can be no adjudication of contributory negligence unless there is an ascertainment of the alleged negligence. Contributory negligence is not legal negligence per se, but it is a negligence which contributes to the happening of the accident. Section 473 of Restatement, Torts, reads: “If the defendant’s negligence has made the plaintiff’s exercise of a right or privilege impossible unless he knowingly exposes himself to a risk of bodily, harm, the plaintiff is not guilty of contributory negligence in so doing unless the risk is unreasonable.” *120 Under this rule, accepted as law in Pennsylvania, there can be no determination of contributory negligence until and unless the act of alleged negligence is explained, understood and crystalized. And in order to bring about that crystalization, there must be the clearest understanding of the facts which make up the accident which gave rise to the litigation. If the defendant’s maintenance of the guy wire across the farm was a negligent one and the negligence made the decedent’s operation of the farm at that point impossible, this would absolve the decedent from any accusation of contributory negligence. What was the accident in this case? When a person darts out before an oncoming automobile, it is obvious what the contributory negligence is, but in dealing with so intangible a substance as electricity, skilled evidence is required to discover the forces which brought about the mishap. Where did Ira K. Rank’s contributory negligence begin? He carried the wire 139 feet without incident. At the 140 foot mark something occurred. The learned trial Judge assumed in his opinion that the cause of the electrocution was the meeting of the guy wire and the “distribution circuit”, but there is no evidence in the record that that is what sent the fatal current through the guy wire. If this case ends without a new trial, it will terminate on a mystery as deep as electricity itself as to just how the harmless guy wire killed Mr. Rank. The agreement, which authorized the defendant company to construct transmission lines over the ground being used by the decedent, reserved to the landowners “the right to cultivate the ground, between said poles and beneath said wires, provided that such use shall not interfere with or obstruct the rights herein granted.” *121 The uncontradicted evidence in the case established that the guy lines over the grantor’s land sagged to five feet above the ground so that it impeded the decedent in the cultivation of the ground. Such an impediment is a serious deprivation of enjoyment of property because no one has the right to deny a farmer the right to draw sustenance from his own ground. The lower Court declared in its opinion that “it was possible to harvest the hay without the use of the Papec machine and tractor and without removing the guy wire.” There is no doubt the decedent could have worked without the modern agricultural machinery now employed practically everywhere except in the most primitive areas on the face of the earth. He could have ploughed the land with a hand plow, sowed from an apron, and harvested the wheat with a sickle. But there was nothing in the contract signed by the defendant which empowered it to compel the farmer to use the back-breaking manual methods of prehistoric Egypt so as not to come into contact with the wire negligently or non-negligently adjusted and maintained by the defendant company. When the contract was signed, tractors,' Papec harvesting machines, trucks and general motor machinery were as much an incident of American farm life as running water, and the defendant had no more right to demand that the landowner do away with tractors than to compel him to go back to the old oaken bucket for drawing water. And it is obvious that if a wire is placed across a man’s land so as to immobolize tractors, the operation of that part of the farm served by the tractor must practically cease. Furthermore, .the wire sagged to a point that the decedent with his feet on the ground could not stand under it without harrassment. He stood 5 feet 6 inches *122 in height and the wire drooped to 5 feet above the ground. The lower Court recognized that the sagging wire constituted a barrier to the proper operation of the farm when it said that the high tension lines and the transmissions lines, “plus the fact that the guy wire had sagged within a distance of five feet from the ground, would probably have been sufficient evidence to submit to the jury the question of Defendant’s negligence.” (emphasis supplied.) But the Court went on to found its decision on the decedent’s alleged contributory negligence. It cannot be said that the temporary removal of the guy wire in any way substantially interfered with the defendant’s rights under the contract with the landowner. It caused the company no damage and in no way impeded the operation of the transmission lines. Conceded that the decedent would have used better judgment by applying to the defendant company’s operation engineers for a removal of the guy wire rather than attempting to remove it, it does not follow as a matter of law that he was guilty of contributory negligence in temporarily removing a barrier which prevented him from using the land to its best agricultural advantages. In the case of Fitzgerald v. Edison Electric Illuminating Co., 200 Pa. 540, 544 , 50 A. 161 , the plaintiff’s husband propped up some electric wires which passed over his roof. Latex’, while painting under the wooden prop, the wires fell on him and he was killed. The lower Court entered a non-suit on the ground of contributory negligence, but this Court removed the non-suit and said: “The nonsuit, however, seems to have been entered on the ground of contributory negligence of the decedent. He was lawfully upon the roof in the *123 exercise of Ms business. It is said that there was no evidence that it was necessary for him to go on the roof to do the painting. No such evidence was required. His convenience was reason enough. It was convenient for him to get at the cornice in that way and he had a right to do so. He found the wires in his way, and proceeded to prop them up so that he could work under them. Whether the means he took were such as a prudent man should have taken is not so clear that it can be determined by the court. If the weight of the wire when it fell on him had been such as to knock him into the street, that would have been so clearly his own negligence that the court could have said so as matter of law. But though he was bound to know in general the dangerous nature of such wires, and to use proportionate care in interfering with them, he was also entitled to presume, from the general custom, that they were properly insulated, unless the defect in their covering was visible to such examination as he ought to have made. All these considerations entered into the question of his negligence, and made it one for the jury.” Ira E. Bank was a simple tiller of the soil without education or training in the field of electrotechnics. And it was up to a jury, also not skilled in electrotechnics to say whether by temporarily removing a wire which apparently served little if any supporting purpose, since it sagged so pronouncedly, he acted as a reasonably prudent person or not. The courts make a distinction between what is heedlessly done and what is ignorantly done. In the case of Bowser v. Citizens L., H. & Power Co., 267 Pa. 483 , 110 A. 372 , the Supreme Court sustained a verdict based upon facts which indicated that the decedent had picked up an electric wire, not recklessly, but unaAvare of its potentialities as it came into contact with the wet earth. *124 Did Mr. Rank know that by moving the guy wire he was flirting with grave danger? Or would any reasonably prudent person have assumed, as Rank did, that the circumstances excluded peril? This was a question of fact for the jury, not a question of law for the Court. So, also was the question of defendant’s negligence a matter of determination by the jury. When persons or corporations string wires carrying death over inhabited lands, a high degree of care is required of them to safeguard the people under those wires from harm resulting from faulty construction or maintenance.. Whether the defendant corporation in this instance lived up to that standard of care was for the jury. Comment c under Section 302 of Restatement, Torts says: “Probability of intervening action. If the actor’s conduct has created a situation, which is harmless if left to itself but is capable of being made dangerous to others by some subsequent action of a human being or animal or the subsequent operation of a natural force, the actor’s negligence depends upon whether he as a reasonable man should recognize such action or operation as probable. The actor as a reasonable man is required to know the habits and propensities of human beings and animals and the normal operation of natural forces in the locality in which he has intentionally created such a situation or in which he knows or should realize that his conduct is likely to create such a situation.” The defendant corporation, through its officers, employes and agents, could certainly foresee that a sagging wire over agricultural land would constitute an impediment to an agriculturist and that in coping with the wire the agriculturist could possibly come to harm. The defendant knew the dangerous potentialities of this intricate and complicated wire system. The decedent *125 did not. He had worked for several years in these fields and had seen and undoubtedly touched and handled the guy wires many times. There was nothing to put him on notice that they could drag him to an untimely death. I would remove the non-suit and order a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757452. Public record. Not legal advice.