*1 infеrence to contrary flies the face of the undis- evidence. puted
The court had jurisdiction below injunction issued. properly
The order decree of the court below is affirmed, be paid by appellants. costs to Mr. Justice Musmanno dissents. Cleaning Dry Laundry and
DeLuca v. Manchester Appellant. Company, Inc., *2 Before Argued January O. Stern, J., and Chidsey JJ. Mtjsmanno, Stearne, Jones, Bell, Peter P. with him A. Leonard and Zion, Green Lyn- wood F. for Blount, appellant. defendant,
Maurice with him Freedman, Herbert H. Hadra and Robert H. for Arrоnson, appellant. plaintiff,
Howard R. him with Frank R. Detweiler, Ambler, for defendant, appellee.
Opinion Mr. Chief Justice Stern, Horace March 1955:
The problem here presented concerns the determina- tion of the proximate cause of accident in suit.
Mifflin Street, is 26 Philadelphia, feet wide from curb to curb. It is a street one-way open only east- bound traffic. The business establishment of defend- Cleaning Company, Dry
ant Manchester feet the street 72 north side of is situated on the Inc., platform protrudes loading A east 11th Street. property the side- extends over from the front of its is 12 feet wide. itself feet sidewalk inches; walk May day truck of accident, On 29, 1953, engaged Laundry Company, the driver was while up loading foot of this to within a was backed it, length platform. feet in cov- As the truck was 18y2 remaining and extended of the sidewalk ered the width roadway, into the leav- additional 11 feet 8 inches an ing approximately 14 be- feet inches a distance of and the south curb the frоnt of the truck tween happened the time to be An at automobile street. slightly parked along side but on the south curb *3 the east of the truck. morning plaintiff, De- in the Elvira At about 7:30 westwardly walking and on the north sidewalk Luca, stepped finding passage by out her blocked the truck, roadway proceed it. The into the in order to around day parallel that she was clear. She testified walked from it of to the of the truck and at a distance side or she came tо a line with about 5 that when feet, ap- the front of it she looked and saw an automobile step proaching, “about a that she took a backward, or the automobile “came that crooked,” foot but so,” say (to- is to her and. struck her. She swerved.toward husband) gether brought suit to for with her recover injuries against Laundry Company against her and óf Charles Chiardio who the automobile. was the-driver entirely of the accident differ-1 Chiardio’s version (cid:127) (cid:127) plaintiff; ent from that of He testified that he was traveling at the rate of about 15 miles an hour, passed he a he maintained two-foot as clearance change that he did not his course in front the-truck, plaintiff alongside .that the.laun- but “came out ..from or dry walking don’t know wheth- running [truck] —I er she was in running but came con- walking, tact left with the front of car and sprawled along my the left side of . . he half .”; stopped within hood, of his length car.
The case was tried the court by without a The jury. judgе trial found that in Chiardio was not man- any ner and negligent that his car did not into the swerve plaintiff plaintiff; of mistake of judg- but ment into contact coming with the car because she acted while perilous position; parking defendant’s truck was illegal and was the proximate cause of the accident. Accordingly he found favor of defendant Chiardio but in favor of the plaintiff Manchester Laundry Com- in the pany sum of en court (53,200. banc dismissed filed exceptions by the Lаundry the find- Company to and ing against it, both the Company to the plaintiff finding Chiardio, and entered judgments There accordingly. followed present ap- peals Laundry Company and the plaintiff.
The court’s findings of facts exculpating Chiardio
from
for the
responsibility
accident were entirely jus-
tified.
trial
had
judge
to choose between the con-
flicting versions of the accident presented by Chiardio
and the
plaintiff,
his conclusion, affirmed
as
the court en
must be
banc,
accepted
aas
finality.
*4
But the
of
appeal
the Laundry
from
Company
the judg-
ment
it must be
In
sustained.
the first place,
is a
there
whether it was
question
really guilty of a vio-
lation of the
in
law
its truck
having
stand as it did
while
It
being loaded.
is true that section
of
1019(a)
Code May
Vehicle
of
P. L.
1,1929,
as
905,
amended,
“in
no
provides
event shall any person park or
standing any
leave
whether
vehicle,
or
attended
unat-
upon any
tended,
unless a clear
highway,
and unob-
feet
(15)
upоn
than fifteen
of not less
structed width
of
highway opposite
main
said
portion
traveled
of
free
be left for
passage
vehicle shall
standing
such
as
.
and that section 1020,
vehicles thereon .
.”,
other
a
park
“No
shall
vehi
person
provides
amended,
unat
attended or
it
whether
or permit
stand,
cle,
in
any
following places:
a
highway
tended, upon
in
But
is defined
“Parking”
. 9.
a sidewalk.”
. .
vehicle,
standing
as “The
a
as
102,
amended,
section
upon
highway otherwise
occupied
not,
. . whether
or
.
actually
and while
purpose
than temporarily for
it
Accordingly
. . .”.
loading
unloading,
engaged
been held that
it was
intended
has frequently
blockings
merely temporary
to prohibit
the Code
incidents
ordinary
in the course of the
highway
in
of business
the reasonable necessities
traffic or
397,
312 Pa.
:
v. S. Liebovitz &
dustry
Inc.,
Henry
Sons,
York
v.
306; Fritz, Administratrix,
A.
401, 167
304, 305,
489
333 Pa.
5 A. 2d
Shakley
Company,
424, 427,
182, 183;
v.
368 Pa.
84 A.
Lee,
323; Purol,
2d
476, 478,
322,
Inc.,
v.
Ct.
Great Eastern
130 Pa. Superior
System,
Inc.,
197
Vunak v.
344, 345,
Walters,
A.
341,
543, 544, 545;
157 Pa.
A. 2d
This
Ct.
43
Superior
660, 662,
536,
is because
act
merely
an
which creates
negligence
a passive
or
of an accident
background
circumstance
does not give
right
rise to a
if the accident
recovery
was in fact caused
act of negligence
an
by
intervening
which is a
302
Philadelphia,
cause: Stone
superseding
Pa.
A.
Schwartz v.
340, 153
Pa.
550;
Jaffe,
324, 332,
188 A.
Kline v.
325 Pa.
295, 298;
Moyer and Albert,
357,
191 A.
Ashworth
347 Pa.
43;
397,
v. Hannum,
393,
398,
of the statute and therefore an act negligence, proximate only regards what law as a remote cause of plaintiff’s adopted accident. theory the court below was that the plaintiff placed a position of peril reason of the side- blocking walk being compelled to walk out into thereby therefore roadway; she was not in what did only but of an error of judgment. our opinion the facts do admit of such an inter- pretation. Except under unusual there circumstances is certainly particular an “peril” encountered adult person2 into walking roadway street, especially the present case where the photographs in evidence show Mifflin Street to be a largely quiet, residential with thoroughfare, traffic. one-way Dowling Co., Inc., Superior In Marchl v. & Ct. upon by plaintiff, A. 2d relied the victim of the accident was year child, legally incapable an unattended seven old of contribu tory negligence. *6 negligence part act on the of either
Without some of plaintiff the or could or Chiardio accident would Company and have the was resulted, anticipate negligence: Polonofsky Do v. bound to such brosky, Leoni v. Reinhard, 313 Pa. A. 73, 93, 76, 169 94; Accepting the 327 Pa. 194 A. 391, 393, 394, 490, plain facts is clear that found court below it as the walking feet of 6 into at a 5 or the street distance tiff, incautiously proceeded be from of the side the truck, yond front line ran into which car, its and Chiardio’s stepped story already right upon her that she her; into that Chiardio’s car veered and swerved back and rejected by therefore her was the court. She was negligence the of of an which was the sole cause act of if to accident. Even in fact she had tried avoid impending stepping emer accident backward, gency of her lack faced her was one due to own which proceeding of did into the center care in as she protection remaining highway of within instead that no vehicle the side of the truck until saw successfully approaching; invoke she cannot therefore judgment” principle3 is excusable that an “error gives rise if the situation to is one which person’s negligent own creation. Moyer Pa. 191 A. v. and 325 357, Kline Albert, highway negligently on the a truck was
43, рlain- A in which the a late afternoon. car dusk pass standing guest truck rider tiff started Avas opposite coming di- in the automobile when another truck from the rear of the and struck rection swerved question plaintiff’s collision. car a head-on 3 Silfies, Dobrosky, Polonofsky 93; Admin v. Pa. A. Company, 610; istratrix, American Stores A. 2d v. 357 Pa. 413; Community Thompson Gorman, Fire v. 77 A. 2d 366 Pa. Light Company, Superior Company Pennsylvania & Power Ct. 304. be main- could of action a cause case was whether standing truck
tained the driver superseded by negligence that of had been whether his plaintiff’s struck which the driver of the automobile of the car saw if car. It was held that the driver standing position and never- of the knew the negligently, proceeded the re- with theless thereafter original sult that the accident occurred, become a non-causal of the truck had the driver legal significance; the chain as to it factor divested of responsibility re- of causatiоn had been broken offending solely operator car. mained with applicable principle as follows: formulated *7 of the exist- “Where a second actor has become aware negligence by potential danger of ence a created of independ- by original an thereafter, an and tortfeasor, brings negligence, accident, about an ent act of liability, the con- of because first tortfeasor is relieved merеly a circumstance dition created him was pres- proximate In the the accident cause.” and its plaintiff saw the stand- ent case both Chiardio and the Laundry Company plenty ing truck of time of the guide accordingly their and Chiardio movements did, proper operate as the with all care; court his car found, independent neg- plaintiff, act of her own however, brought ensuing ligence, so that about the accident, negligence negligence, wаs her Company (even assuming negli- there was such gence) proximate cause of the accident.
Ordinarily
negligence
question
whether the
proximate
of the accident
defendant is
cause
is
fact-finding
(Landis,
for tribunal
Administratrix,
(No.
Transportation
Conestoga
Company
1),
v.
349
466),
Pa.
36 A. 2d
but where the relevant
97, 100,
465,
dispute
are not in
facts
and the remoteness
causal connection between defendant’s
and
from
evidence
plaintiff’s injury clearly appeаrs
is within
as such,
becomes one of law and,
question
Bak
Keebler-Weyl
v.
Rugart
review:
scope
appellate
Rein
Leoni v.
A.
200;
277 Pa.
414, 121
198,
ing Co.,
408,
Savings
Irwin
Pa.
194 A.
492;
391, 396,
490,
hard,
349 Pa.
R. R.
& Trust
v. Pennsylvania
Co.,
Company
Company,
Frisch v. Texas
37 A. 2d
283,
432, 434;
278,
Roche
292;
363 Pa.
The judgment and is reversed dry Dry Cleaning Company, Inc., judgment is here entered in its judgment favor. affirmed. of defendant Charles Chiardio is favor Dissenting Opinion : Mb. Justice Musmanno early At the Elvira DeLuca is a woman. wоrking hour of May 7:30 the morning Walking on the to her already way place employment. northern westwardly sidewalk, on Mifflin Street on the she was confronted in the 1000 block aby huge took up which the whole width of sidewalk On op- into the street feet inches. projected another car was posite the 26-foot-wide street, Mrs. DeLuca to continue parked. only way *8 into on her to the way truck, go skirt side the the sidewalk middle of the cut back to cartway and. do this barriеr. She to beyond proceeded the parked the at a point but when she to the middle of street got the parked even the front of slightly.beyond .with car in an eást- was struck another truck, going injuries serious for wardly which sustaining direction, her the Court without a awarded sitting jury, below, the a verdict the sum of The Court found $3200. Dry Manchester own- Laundry. Cleaning .Company, the of but the ers .of absolved truck, .guilty, ..negligence striking neg- of of all owner the Charles Chiardio, car, ligence.
This of Court the verdict favor Chi- now affirms judgment ardio and in favor of the Man- enters a n.o.v. Laundry. appeal the chester The net result is to deny every possibility compensatory Mrs. DeLuca damage injuries. precipitates, for This as I her view phenomenal A of a truck result. leviathan shuts it, only appropriates nearly the off safe lane travel and the half width Another of a narrow street. the car, up other side of the takes half of almost the street, spacе cartway. free A still left the third car at- tempts squeeze through remaining tight passage. to the interplay Because the an in- these three vehicles, pedestrian nocent is knocked the street down to and seriously injured, according Majority, the but, parked negligent, truck was not car impeccable. moving without and car was blame, pedestrian. one at fault But what was pedestrian Mrs. DeLuca to do? Was she to return possession illegally home beсause a truck had taken the sidewalk? sustaining verdict of the lower court as to Majority says: judge
Chiardio, “The trial had to conflicting choose between the versions of the accident presented by plaintiff, Chiardio and his con- it was affirmed the court en clusion, as must banc, accepted finality.” be aas judge, choosing
But the same trial between the presented by versions of the accident as Company presented by plaintiff, and as decided рlaintiff. verdict That was also affirmed Why Majority court accepted en banc. has the finality? Majority that verdict as a I don’t see how the measuring computes can use one rod when it the final- ity of a verdict which absolves a defendant a to-
494 it considers ver- rod when
tally measuring different defendant. dict which convicts a the against DeLuca won a verdict Mrs. the evidence heard The court below Company. that verdict above, as stated and, decided in her favor has еn This Court banc. affirmed the court in consid monotony almost to the point stated verdict, has won the the plaintiff where ering appeals to be all inferences the must view evidence we the to most favorable light in the drawn therefrom mo the Majority the varies plaintiff* Here, however, plain against all the inferences notony by deciding “In the Majority present tiff. says: For instance, length no as testimony case there whatever happen to the prior time truck loaded being in front of it have been may ing accident; for a moments only few Laundry Company’s property in front of But it have been may at most.” also it was one how long for hours. No knows laundry plain there. should the inference be Why truck he was tiff? testified that operator indicate size would huge unloading. unloaded in a “few moments at could be most.” Code P. L. of The Vehicle (a)
Sec. “. . any as declares: . event shall amended, at- standing any leave whether person park vehicle, a clear any tended or unless upon highway, unattended, than less fifteen (15) and unobstructed width main portion traveled of said upon highway feet vehicle be left free standing such shall opposite thereon other vehicles ...” passage so laundry The record shows truck was leave feet inches as to between * Hannum, Pa. Ashworth v.
front of the truck The and the south curb of the street. fact that another car on the other wаs side narrowed the “clear and unobstructed width” to a de gree considerably less than that allowed statute. by The Majority this completely ignores point favor the plaintiff’s case by that if the stating parking even of the truck constituted the parking was negligence, not the proximate and efficient cause of the accident. But whether the did or did not illegal parking cause the accident awas matter to be determined the fact- by finding the court did body, below find the the parking toas efficient approximate and cause of the accident. In Bricker v. 36, 355 Pa. Gardner, we said: “The defendants contend that was parking for a purpose allowed the statute or from excepted its A general prohibition. party such claiming excep tion or from a immunity general prohibition must bring himself within the defendants it; therefore had the bur den of satisfying jury that the parking was such as was allowed the statute ... As the evidence was the ascertainment oral, of the fact . . . jury. It was also suggested that if parking, unlawful, not the proximate cause of the accident, conduct of the driver of the truck in which the plain tiff was was an riding independent act of negligence constituting legal cause of plaintiff’s injury . . . That evidence also was oral and necessarily for jury”*
In Marchl v. & Dowling Co., Superior Ct. Superior Court said: “We are of the opin ion that the illegal parking appellant’s truck was a causаl and substantial factor in minor plaintiff’s in and that jury, the intervening act of Bowers was not a superseding cause, although was a contributing
* throughout, Italics mine. proximate happening
cause and a in the factor disposes Majority accident.” The of the Marchl case years age saying plaintiff only that the contributory negli- “legally incapable therefore nothing gence.” But to do case has feature proximate with matter of cause. fact-finding bar found in the case at tribunal negligence. сontributory Ma-
Mrs. DeLuca free of jority rejects finding and Mrs. DeLuca this declares According contributory negligence. *11 Majority, Mrs. should have remained “within DeLuca protection of the truck she saw until side approaching.” that no But unless Mrs. vehicle was stepped a ve- DeLuca how was she to see whether out, equipped approaching? not with hicle was She was periscope project a of traffic to into the stream while submerged рrotection remained within the shade through laundry of the truck. could not look She plaintiff it: the is truck. She could not look over high. high, inches inches 7 feet 4 feet 3 laundry upon perilous truck forced this situation journey her her. Of have abandoned she could course, day’s entirely by up returning giving her home wages, until the truck remained she could have relinquished good of the sidewalk, its time dominion journey appointed proceed but if she to on her to look out. to a moment when she had there had be Ordinarily happen except in a hun- once would very pedestrian times that at the moment dred appear stepped at should out to another vehicle look, spot very But it that that moment. is that at responsible for the chance those one hundredth necessary precautions. perilous take the situation must Laundry Company should on Someone behalf approaching vehicles to warn have been available warning rounding pedestrians truck. Or suitable should have Com- signs posted. been Did the use due care to avoid under the circum- pany accident In my stances? it did judgment not. also Majority exculpated has Charles Chiardio,
the other this defendant, respect sustaining I lower court. see how be do Chiardio can held blameless. He saw the truck into the street, extended he He parked saw car. knew that would pedestrians to come into the have street around the get truck. He knew that with the street three cars, clogged the free left space for a be pedestrian could not more a than foot or two. He allowed himself dis- “Q. tance clearance. He testified: How close to the front of this truck your car the left side as you I were it? A. better passing say would than a foot at clearance, least, perhaps two-foot clearance on my driver’s order to side, pass the truсk.” Was that due care under the circumstances? I do not believe so. His speed per was miles hour. Was that the proper speed under the circumstances? I not. believe Any- one passing truck, knowing pedestrians well at may appear any moment from behind truck, *12 should move forward with such to slowness as make a snail envious. Chiardio’s negligence, however, to confined excessive speed under circum- the stances. He not only propelled himself voluntarily in- to the of Skagerrack danger but he directed his course in a such manner toas intensify the peril any pedes- to trian who might appear before him. He testified: “As I as I said, approached the truck I veered slightly to- the I ward When right. crossed the street the truck toas still in I my path. a veered little the toward right to the I pass truck; gave myself two feet clearance on left side in order to my pass the but truck, there was Mrs. turn.” DeLuea testified that she the saw car before just she was hit. The lower court made the sig- saw is if inference
nifieant “The observation: This car.” She she saw the he see her. said could him, Majority not credit another inference that the did is plaintiff. the to warning any give audible
Chiardio also failed to approach. formed he the bottleneck his As neared of parked by his it was the and the car, imperative duty ob- blow his horn because was to anyone stepped the truck out from behind that if vious collision a was inevitable. plain- awarding the in to
The court verdict below, Laundry Company which tiff it was the stated compelling plaintiff position peril, placed in a of roadway. go Therefore she was out into the her anything, only negligence er- an if of of but, contesting judgment. Majority, con- this ror says opinion not ad- in its “the do facts clusion, interpretation.” happens What here to mit of such an are to be the rule that all inferences drawn favor plaintiff? apparently is The answer in this case simply ignored. that it is Thompson said : 247, we Gorman, natural result of the de-
“Where the injured person place position fendant is to danger, judgment person injured, a mistake of emergency de- in the thus does not relieve the created, provided liability, emergency cre- thus fendant position danger was created the de- ated or the negligence.” matter fendant’s No how case is plain- the fact remains that the need for the viewed, tiff to into the would arisen descend street never have blocking it not been for sidewalk had no matter the case is truck. And how viewed fact pedestrian injured innocent remains that an when jaws like tortfeasors closed in her of a two nut- *13 cracker. not recover on Majority says plaintiff may theory “an error of If there judgment.”
error of of the judgment the same part plaintiff, cannot be as I on the it, part view review- said, ing tribunal. Empire
Robinson Mutual Fire Insurance Com- pany Pennsylvania, Appellant.
Argued January Before C. J., Stern, Chidsey JJ. Steaene, Jones, Bell, Musmanno, J. with him <& Gerald Gerber Haas, ap- Galfand, pellant.