*1 or for him to to it advisable necessary tion as render be under care.” or error of law no abuse discretion
We find add that detailed We may very the lower Court. made Ballem con- confessions intelligent and highly if had a he mental illness demonstrate clusively Mental of the provisions did not fall within the commitment warranting requiring Health Act mental institution. We read the charge Court,
7. have lower of the de- rights therein. no error find reversible protected by fairly adequately fendant were throughout charge its jury Court entire case. all of other contentions
We have considered further defendant but deem discussion unnec- made by essary. affirmed.
Judgment Paving Company, Appellant. Listino v. *2 C. Before Stern, J., Bell, 1956. Argued April 27, JJ. Mvsmanno Arnold, Chiusey,
re- 1956. August 1, refused argument him & Croskey, Croskey S. with Ralph Edwards, appellant. for McCabe, III, Henry Reath, Graft
J. T. B. Morris & for Duane, Heckscher, John Martin, appellees. 1956: Mr. Justice June 25,
Opinion Bell, cause Was defendant’s plaintiff’s break the acts of husband or did accident, superseding and become the causal connection of the accident? cause light
Considering most favor- in the the evidence judg- plaintiffs, for on a motion as we must able to these are the facts: ment non obstante veredicto, passenger in driven the car Listino was Clara proceeding Boad—a wide south on her husband highway to 35 miles about 30 lane concrete two —at evening 1952. of November 21, on the an hour, *3 lights rainy night where no street was dark repairing the Defendant was occurred. the accident point Sproul from the accident 300 feet and at a Road, Sproul portion nar- Road concrete the travelable highway. plaintiff’s abruptly side of on rowed signs, or other warn- barricades flares, There no were abrupt Plain- ings reduction in width. to indicate this Sproul Road knew that the Listino, Aleardo tiff, repaired oc- being had on two the accident and before being portions past which were other casions driven car off the concrete his Listino drove reconstructed. highway portion highway which was on to that right repaired. being of his car hit He felt the wheels in that his car traveled He estimated mud ruts. swerve back before he was able to about 30 feet mud highway. Ap- portion paved of the concrete on to the plaintiff got back on proximately feet from where 270 portion Sproul crossed Road, he concrete opposite road side of the struck on and was road oncoming right angle by collision, i.e. in a sidewise, put did ñor he on brakes, timé did At ño traffic. he got know whether his car skidded after he it back portion highway. onto the concrete His best testimony fighting was that he was he wheel; saw coming opposite way, three cars then he blacked anything ont. Clara Listino did not remember about the accident. produced investigated
Plaintiffs Officer Ruthers who telephone the accident as a result of a call. He testi- fied as follows: [plaintiff’s “There awas Studebaker sedan car] *
crosswise in the northbound lane We were traffic. heading Pennsylvania Sproul south on Road, Route position approximately yards 320. It set south part Sproul of where the newr Road had been wid point point midway where that ened, and a ended, Springfield Sproul the intersection of It Road. proceeding had been struck a car northbound Sproul a Chevrolet sedan . . . some Road, of the mud dragged and debris that was Mr. car from Listino’s highway the southbound lane of the across an arc highway point northbound lane of the at the impact.”
Immediately after the accident the officer took Sproul measurements and made a sketch of Road. Briefly summarizing Listino was situation, driving south on when the Road; road narrowed *4 paved portion; right he along ran off the his wheels ran muddy regained portion he ruts; the concrete running Road after in for the ruts 30 he feet; right then feet in drove 270 for then lane; reasons unknown or he undisclosed crossed over into left right angle northbound lane and was struck in a col- lision traffic in that lane.
* Italics, ours.
36 has burden plaintiff
It is hornbook law that the that proving defendant’s v. Laundry DeLuca Manchester the accident: cause of Pa. 112 A. 380 Company, Inc., and Dry Cleaning 484, 382 437, Penn Oil Co., Pa., 2d Helm v. South 372; Pa. 88 A. 114 v. Pa. R. R. 371 A. 2d Lanni 909; 106, Co., 102 146. Pa. A. 2d 226, 2d Brusis 376 v. 887; Henkels, to this There was His sustain burden. evidence failed from and no evidence no affirmative evidence driving inferred that Listino’s be reasonably could accident, feet from the for feet in mud ruts 300 30 soft point at pull him later over that caused 270 feet traffic in oncoming front crosswise the other lane. subject of and on the acts intervening
The law difficult to formulate so cause is because superseding do and these can and for arise, situations varied many always uniformly it has not been expressed.* reasons to whether boils down chain question superseded by intervening an causation was broken act. expression principle ques- the best
Perhaps DeLuca v. Manchester Laundry tion found 380 that In Cleaning Company, Inc., supra. Dry Pa., non obstante veredicto was entered case a judgment ground intervening Court upon superseding cause of accident. : 488-492) said (pages Justice Stern Chief * Laundry Dry Cleaning DeLuca Manchester Com v. Cf. McCann, pany, Inc., 372; Mastrocinque 484, v. 112 380 Pa. A. 20 Moyer Albert, 33, 55; 357, KUne v. 122 2d 385 Pa. A. 325 Pa. Bellone, 43; 483, 754; Roadman v. Brusis 191 379 Pa. A. 2d A. 108 Henkels, 226, 146; Helm v. v. South Penn Oil 2d 376 Pa. A. Co., Dahl, 437, 909; Coleman v. 382 Pa. 114 A. 2d 371 Pa. Restatement, A. 2d 678. Cf. also Torts.
37
Com
Laundry
“. . . assuming, arguendo,
of
the provisions
of a violation
guilty
was
pany
such negligence
per se,
therefore negligent
statute
proxi
unless
was
liability
a
not
ground
in question:
accident
cause of the
mate and efficient
829;
“The question, then, a violation if it were even truck, Laundry Company’s awas of negligence, therefore statute remote as a regards the law or what only . . accident. . cause of plaintiff’s 191 A. Pa. Albert, 357, “In Kline Moyer v. highway negligently parked a truck was plain- A car which of a late afternoon. the dusk truck standing pass rider tiff started guest direc- opposite in the coming automobile when another and struck truck rear of the from the tion swerved question in a head-on collision. car plaintiff’s main- could be of action a cause the case was whether truck of the standing the driver tained against *6 superseded by negligence of whether that had been plaintiff’s the of the automobile driver which struck car.* It if and was held that the driver of the car saw position standing the truck never knew of of the and proceeded negligently, theless thereafter the result with negligence original of that the accident occurred, factor of the truck a non-causal driver had become legal significance; to it the chain divested as responsibility causation had been remained broken ap solely operator offending of the car. The plicable principle ‘Where was formulated as follows: a actor has the existence of second become aware of orig potential danger by an created independent act inal tortfeasor, thereafter, negligence, brings tort about an the first accident, liability, condition feasor is relieved of because merely him of the acci created a circumstance proximate . . dent and not its cause.’.
“Ordinarily question negligence of whether the proximate for a defendant is a cause of the accident is fact-finding (Landis, tribunal Administratrix v. Transportation Company Conestoga (No. 1), Pa. 349 466), facts 36 A. 2d but where the relevant 97, 100, 465, * example superseding The most recent cause is found cinque Pa., supra. case, plain McCann, M astro v. 385 In that passenger tiff’s decedent was the automobile of the additional illegally parked defendant. The additional defendant his auto downgrade slope highway. mobile on a aof state Plaintiff’s de got high out cedent of the car and stood behind car on the way original ap to relieve himself. The car of the defendant proached rear, plaintiff’s from the skidded and struck and killed decedent. contended that of the Plaintiff additional de fendant, illegal parking, i.e. his awas concurrent cause of the ac intervening original This held cident. Court de superseding consequently fendant the sole accident, judgment cause of the and entered a non obstante vere in favor of the additional dicto defendant.
39
dispute
causal
remoteness of the
not in
are
plain
negligence and
defendant’s
connection between
ques
appears
injury clearly
from the evidence
tiff’s
scope
within
one of law and,
such,
tion becomes
Baking
Keebler-Weyl
Rugart
appellate
v.
review:
Rein
Leoni v.
200;
Aleardo Listino’s proximate and efficient “the Justice Stern of Chief original negligence of . . . the of the accident cause Company] Paving non-causal a had become [Union legal significance; it the chain as to divested factor responsibility re- and had been broken of causation offending operator solely car.” mained with judgment is reversed in of Clara Listino favor The Paving for the defendant, entered is here Company. by Opinion
Dissenting Mr. Musmanno: Justice night Listino, Aleardo 21, 1952, On the of November riding headed in the car beside him, bis wife with pro- County, southwardly Road Delaware per ceeding It a 35 miles hour. was at the rate of 30 to stormy night, rainy road with and somewhat dark, supplied by except way lighted illumination in no Suddenly headlights the road ceased car. giant from left had hand as if a exist. It was rug, highway, pulled from beneath the wheels like a highway, over which Listino The of the car. three-lane abruptly travelling milés, for became been had 2% asphalt highway, leaving floor- no concrete two-lane pavement ing What had been a 38-foot Kinder car. only 30 momentum was now feet wide. car, pavement dropped left the to a terrain unabated, deep steering ruts. The vi- water wheel mud, olently jolted grasp fought within the driver’s as he to control the movement of the car after trav- which, elling 30 swerved to the climbed to re- feet, left, maining swung pavement, erratically toward the north- high- bound while in that lane, athwart and, lane, way, moving was struck a Chevrolet car northward- ly. In the collision Aleardo Listino sustained some trivial hurts wife, but his Clara Listino, suffered a pelvis, fractured cerebral concussion and serious injuries. internal brought trespass
Listino and his wife action against Paving Company the Union resur- facing widening Sprout Boad and which had failed warning signs to erect barricades or at or near the end jury third new lane. The returned a verdict favor of Mrs. Listino the sum of but allowed $10,000, nothing. ap- her Company husband The Union pealed seeking judgment against to this Court n.o.v. appears Mrs. and in what Listino, Court, to me to *8 wholly granted judg- position, be a unsustainable has ment n.o.v. Pennsylvania Highway
In its contract with the De partment Sproul for the work on the Boad, Union Pav Company ing provide: bound itself to “Suitable and warning signs, flags, sufficient barricades, red lanterns, approved placed by reflectors shall torches, be and/or 'protect adequately the contractor to the work under damage' public travelling from construction and the * unnecessary accident and inconvenience.” from * throughout, Italics mine. danger signals, agreed
It “All also that: barricades, warning signs at shall he illuminated and obstructions kept night burning lights from sunset and all shall be periods of time when until for such other and sunrise, warning signals, danger signals, the barricades, light.” clearly are not in natural obstructions visible highway point At shrank the the three-lane where utterly highway, to failed to the defendant two-lane negli- up quoted. Its above live commitments culpable gence respect flagrant the to this Majority degree. con- The of this while Court, ultimate Paving ceding Company, the of the Union damages yet deprives of the $12,000 Mrs. Listino theory jury on the that her husband her the awarded entirely guilty dis- of an isolated negligence of from the associated Company. period Majority argues if an enormous
The time stretch distance intervened ti'emendous ending highway abrupt between catastrophic on the northbound side of collision Majority says Lis- that after Road. Thus, n tino’scar climbed rough pavement following its then [Listino] mxid “he drove course and ruts, over right There is not a word the rec- feet in his lane.” only Listino ord to assertion. substantiate happened. He testified as how accident one who my right I hit “All at once felt that wheels ruts, said: my feelings, stay deep I tided to Well, rats to hoping tried to control the I wouldn’t car, wheel and something happened, spin, go until and it threw into a mj All I it swerved to left. remember across; ear fighting saw and I three wheel, I cars is that was opposite way. coming I Then blacked out.” calmly Majority’s driv- Listino visualization The theory.- right ing lane is chimerical 270 feet *9 testimony of Police Officer who visited Ruthers, immediately happening, scene accident after its reveals the line of travel of Listino’s car. He testified by dragged that he saw “mud and debris that Mr. highway Listino’s car from the southbound lane highway across in an arc to the northbound lane of point impact.” paved at the This written arc, unpaved portions story tells the Road, slithering a car over mud and uncontrolled and wetness, unguided by leap by driver who was bewildered paved highway, from the and who “blacked out” before n impact very with the Chevrolet car. The sketch submitted defendant’s counsel to this Court refutes Majority’s statement that Listino drove 270 feet right paved highway on side after he had unpaved left terrain. Majority conception
The reveals another erroneous says of the evidence when that after Listino drove for 270 feet he then “for reasons unknown or . disclosed . . crossed over into left northbound lane and was right angle struck in a collision traffic in that lane.” Majority The assumes that Listino, who had had years’ driving experience, riding after in the 270 feet right suddenly, and for no reason lane, conceivable sanity, precipitately right consonant with executed a angle (accepting hypothetically turn such a geographically mathematically maneuver would be possible* ) path and thus thrust car into the of an speeding already coming. other car which he had seen Majority could never have described so unrealistic, impalpable,' impossible a movement were it not proceeding supposition fallacious that Listino’s pavement’s abrupt ending of travel from cóurse highway pencil * A car cannot be oñ sheet turned óli a á like paper. *10 point the of the collision with the a tran- Chevrolet was quil, journey smooth under the conscious direction portray wholly op- Listino. The a realities, course, posite picture. trip from left Listino’s the moment he paved highway the to the moment he met the Chevrolet (which, accomplished jive incidentally, was about seconds), catapulting awas movement over chaotic, slippery pavement, mud and momentum of born plunge slippery ground. on to the dark, Majority’s appears Another error of fact in the Opinion, namely, “Shortly [Listino] before the accident past portion had on two occasions driven which was being “Shortly”, in reconstructed.” the context of only suggests day perhaps Opinion, a or two or even point verity, In had several hours before. Listino Sproul “during been on Hoad “once or twice” period pre- preceding two months’ the accident.” This ceding trip daytime was made conditions when entirely they on the were different from what were night preceding trip of the accident. On that the road you would “was different sections where barricaded, say from all one side to the other and traffic, detour nothing there on the that.” Of course was like that night night accident] “Then [the accident: of the anything you X barricade or didn’t see one to warn that anything nothing ahead or at all.” detour, gotten
Listino’s car would never have over to been struck northbound lane and it would never have it not been for south- the Chevrolet had the severed responsi- Sproul Holding lane of Road. Listino bound on lane like for the disaster the northbound ble blaming roof a thrown from the of a build- man, who, place ing, than find a softer on Avhichto land does not condemning his bones. It is like crushed the one which target seeking flying for not unrelated to arrow trajectory impetus twanging it followed from the bow. Majority 300- has decided that Listino’s chaotic journey jumping-off place
foot from Eoad smash-up inter- Chevrolet scene constituted an vening wiped event which out fault failing Company to erect barricades warning signs danger spot. at I be- the crucial not do intervening journey the 300-foot lieve *11 superseding event which made it the of acci- cause clearly dent. The record that shows it was the Union Company’s negligence Paving Listino which forced the highway car on to northbound side of and it was negligence whip, Paving’s long Union like a which, feet cracked over and struck him down Listino 300 away. actively passively, What Listino or was did, Paving’s negligence direct result of pushed whirlpool him into the of a move- vortex whose possibly not he could abate control. ments negli- Majority says that: “Aleardo Listino’s gence “che the words of Justice Stern Chief was . . . the efficient of the accident cause Company] Paving original negligence had [Union of legal signifi- of factor divested a non-eausal become . .” cance . “proxi- “negligence” say Listino’s
To that say that is to of accident and efficient cause” mate frightened by person a bowlder a bewildered who, steep crashing of it instead runs into a hillside, down injuries against as away liable for his own from is it, top hill released the bowlder. of the man at who by saying Paving “the out of this case To take Union non- become a original of Union had significance,” legal like of factor divested eausal blaming play taking Macbeth, out Macbeth Banquo tragedy Duncan, the results of that Macduff. Pa. two
In the of Thornton v. case Weaber, pass attempted they boys to were electrocuted when away, had been a fence distance over cable some which, falling upon charged electricity through with negli high a the defendant’s tension wire released gence: high pole carrying the truck had broken tbe argued of the de tension It there on behalf wire. was attempting boys, in fendant that the action of two original to far from the climb removed fence, act of and that it thus became interven ing With event which broke the chain of causation. regard that contention, this Court said: fault
“This contention assumes a stream identity gulf subsequent its loses once it enters into assumption circumstance. not accord Such an does reality. original its An as far fault carries aggressive quality of those influences the movements unspent come force. who within boundaries its in- The chain causation be broken course, can, *12 tervening snap merely but it does not because of events, passage interposition time . of of distance. . . breaking high of
“The tension wire was proximate although not the immediate cause of the fatality of which followed. The is not so unaware law permit reality that it will a tortfeasor to turn his wrongful immunity by asserting act into that the even- damage tual resulted from more cause a immediate put it is clear that this into when immediate canse was operation by his tortious conduct.” own arguendo, if I
Even were that Listino to concede, in some manner to for the blame eventual collision agree car I with Chevrolet stiff could not with Majority failing part that this on elim- Listino’s would
46 responsibility. up-
inate the Union from all In holding non-liability part its of of thesis on the Paving, Majority cites the of DeLuca v. Man- case Laundry Dry Cleaning Company, chester Pa. my judgment It is DeLuca considered 484. justice represents gross miscarriage case a which apparent reading in I the most casual its facts, repudiate day no trust that some Court it as will worthy authority longer it of citation for what say. professes to Majority Moyer
The does cite Kline n. Albert, splendid but Pa. which is indeed a decision, impeccable logic therein contained. fails to follow by left In that a truck driver the name of Albert case, highway. Another motorist his truck unattended parked driving (Moyer), in the same direction as the facing, left truck to the drove around the truck was an the road and there head-on side of collided plaintiff riding. in Kline was automobile which Moyer jury and Albert. returned Kline sued both Moyer against both and Albert. The lower verdict judgment as- in entered n.o.v. favor Albert, Court leaving serting truck in that Albert’s superseded by negligence of been had unattended only driving Moyer around it and that, therefore, damages plaintiff. Moyer This liable doing the rule laid down and, so, Court reversed today Majority ignored. regrettably This has Justice) (noAv said: Chief Justice is what Stern [Moyer] become aware actor has a second “Where danger neg- potential of a created the existence original there- ligence tort-feasor an [Albert], independent brings negligence, about after, *13 tort-feasor is relieved of [Albert] first the accident, an by liability, him the condition created because proxi- merely accident and not of the its circumstance [Moyer] mate cause. Where, the second actor however, apprised does danger not become of such until his own negligence, existing perilous added to that of the con- negligent has the dition, made accident inevitable, Moyer] acts the two [Albert and are of tort-feasors contributing proximate hap- causes and in the factors pening impose upon the accident liability both of parties guilty of appearance
I don’t see how Listino’s on the north- reasoning bound side of Road under of can, by any elasticity interpretation, the Kline of be case, “independent negligence.” called act of There was no break in chain of events which from the led pavement oncoming broken Chevrolet. pavement
stream causation which flowed from the to the Chevrolet as direct and undisconnected as falling cascade down a mountainside. if, However, despite helplessness being of Listino as he was car- wildly careening regard ried his we are to car, inability his his to control we must vehicle, non-negligence rule not out as force tortious Listino Union which threw his dilemma. into taking phase Thus, the second criterion laid down applying the Chief Justice the Kline case paraphrase in the at facts case we can bar, language Chief Justice’s as follows: Since Listino did apprised danger not become the collision with negligence, the Chevrolet until own added to existing perilous [caused condition Paving] negligent had made the accident inevitable, Paving] of the tort-feasors [Listino acts two and Union contributing are causes and in the factors impose liability upon happening accident parties. guilty both of proof concretely
The criterion of so set forth in the followed in the case of Kline case was Jeloszewski v. *14 disregarded that case was also 375 Pa. but Sloan, Majority here. In tbe Jeloszewski in decision tbe its attempted pass some to a motorist named Swartz case, became and he then himself cars of him stalled ahead wrong a car driven of the car. side Later, on stalled not vio- but car, ran into the Swartz Jeloszewski car lently. the Jeloszewski car and While 'Swartz juxtaposition named a motorist to each other, in were along car, into the Jeloszewski and drove came Sloan legally injuries re- Who became followed. and certain injuries? for sponsible liable Was Swartz for these crossing wrong Sloan of the road? Was to the side over driving road car the Jeloszewski for into liable appraising present Chief in of him? Justice, ahead upon seeing the ob- said: “If that situation, Sloan, apprised being ahead of him and thus struction danger, instead but could have avoided the accident, negligent operation guilty of his thereafter of such was negli- thereby bring to about a such collision, car as part primary, gence active, have been the on his would thereby proximate cause of the accident, efficient negligence reducing original non- Swartz to legal liability breaking, as factor divested of causal through . . . But if Sloan, the chain of causation to him, any pathway or for ahead of him inattention negligent failing stalled to see the reason, other that the even with care- collision, until such time cars operation car could not have been of his thereafter, ful part negligence on his not relieve would such averted, original liability, the latter’s from for Swartz equally then remain contribut- would as ing cause of the accident.” Placing the Jeloszewski rationale into the frame- employing case at bar and as of the facts work phraseology closely possible the of the Chief Justice, say through that: If inattention Listino, would we pathway any ahead of him or for other reason, negligent failing danger being to see the on the northbound lane Road such time until the collision with the Chevrolet even with car, operation careful of his car could not have thereafter, part been such on his not averted, would re- liability, *15 lieve Union from for the Union Pav- ing’s original act would then remain as equally contributing proximate the cause of accident. Majority overruling
Unless the here is the Kline and the J I eloszewski do not see consistent cases, how, n logic, justice, it can law, reverse the verdict jury which decided that the of Union Paving proximate was a cause the accident. Al- though undisputed the facts were in in- the case, disputed. ferences were In the Kline the Chief case, “Except undisputed, Justice said: where the facts are arising questions [and the inferences therefrom], intervening agency cause and are for the jury.” (Bracketed supplied). light, words In the then, of the Kline and J eloszewski the action of the decisions, Majority here constitutes an absolute invasion of the jury’s prerogatives. ignoring precepts
In addition to in down laid Major J and Thornton Kline, eloszewski, cases, ity is indifferent Section Restatement, Torts, Negligence “§447. which reads as follows: of Inter vening intervening Acts. The fact that an act of a person negligent neg third is in itself or is in done ligent superseding manner does not make it a cause negligent of harm to another which actor’s conduct bringing’ (a) ais substantial factor in if about, negligent actor at the time of his conduct should have might person (b) act, that a third realized so or a rea knowing existing man the situation sonable when the person regard it act not third was done would extraordinary person highly so had that third response (c) intervening act is normal acted, the actor’s conduct and a situation created extraordinarily not is manner which done negligent.” propositions
Applying enumerated the three above say: I to the facts the case at would bar, (a) have realized should up pavement putting cutting off the barri- without easily motorists; result in accidents to cades could (b) foresee that a not be unreasonable to It would position Listino thrown into into ivhich motorist would act as he did the tumultous five was forced, mercy at over forces seconds when he (c) he Listino’s actions were a normal had no control; response to situation into which he was thrown through no fault of own. *16 describing Road, of the witnesses
One you point at the Listino reach the said that highway.” you am “run out of I occurred accident by depriving Mrs. Listino of ease, afraid by jury, her this Court runs out awarded verdict justice. I dissent. Homes, Philadelphia Department of Inc. v.
Lened Appellant. Inspections, Licenses and