19 A.2d 370 | Pa. | 1941
This appeal is from the refusal of a motion for judgment n. o. v. filed by The Pennzoil Company, appellant, after the second trial of a trespass action brought against it by William T. McFadden, who died from his injuries following the first trial and whose administratrix, Lillian McFadden, appellee, has been substituted of record, to recover damages for injuries suffered in alighting from appellant's motor truck, and is the second appeal in the case.
On the first appeal to this Court (McFadden v. Pennzoil Co.,
Appellant had undertaken to furnish transportation, between Rouseville, Pennsylvania, and construction work on premises owned by it some miles away, to McFadden and other of its employees who had been temporarily transferred from its payroll to that of an independent contractor, for the duration of the construction, and had transported them daily, over a long period of time, in the body of the dump truck from which McFadden was alighting when he was injured. The number of men thus transported varied; sometimes there were two, sometimes four, and sometimes as many as eight. On the day of the accident, August 12, 1932, McFadden and another employee, one Huddleston, boarded the truck, as usual, at the close of the day's work, seating themselves on the floor of the body of the truck, just in back of the cab, and they there rode in safety to their destination at appellant's garage in Rouseville, where the truck was brought to a complete stop by the driver, who then advised them that they should alight. McFadden immediately went to the rear of the truck and began to get off. Holding to the sideboard on the left side of the truck, he placed one foot on the tire of the left wheel and was in the act of placing the other foot on the hub cap of the wheel, when the driver, without affording him sufficient time to alight and without notice or warning of any kind, suddenly started the truck, pulling or throwing him to the ground and beneath the wheel, which ran over him as the truck moved forward. The truck was brought to a stop a short distance beyond McFadden's body, but, despite the outcries of the injured man and onlookers, was then backed over him, further injuring him. Huddleston, who got off on the right side of the truck, safely reached the ground.
Accepting as verity the evidence most favorable to appellee's side of the case, and the inferences legitimately *436
to be deduced therefrom, as we are required to do in cases of this character (Borits v. Tarapchak,
That McFadden rode in the body of the truck rather than upon the driver's seat is of no consequence under the circumstances presented. "The test for contributory negligence is whether the act constituting the negligence contributed in any degree to the production of the injury: Creed v. P. R. R.,
It is not sought to recover damages for injuries sustained by McFadden while he was riding on the truck, and this is a fact of controlling importance in this case. Assuming, for the sake of argument only, that he was negligent in riding as he did, on the floor of the body of the dump truck, such peril as may have been incident to his so riding was passed when the truck safely reached its destination and was brought to a complete stop, and the assumption of risk involved could not, therefore, be extended so as to absolve appellant from responsibility for the subsequent negligent act of its employee by which he was fatally injured. McFadden's negligence in this regard was not a cause of his injury, but at most a circumstance that made it possible; his position on the truck in no way contributed to the injury, but, like that of the injured in Robinson v. IceCo., supra, was "a mere incident in the line of [appellant's] unlawful act, which was not to be anticipated, and without which no harm would have resulted." In Schomaker v. Havey,
Nor do we agree with appellant's contention that, in alighting from the truck in the manner in which he did, McFadden can be said to have assumed such an obviously dangerous position as to preclude recovery as a matter of law. He did not attempt to alight until the truck had been brought to a complete stop and he had been advised by the driver that it was safe to alight, whereupon he promptly began to get off in the manner heretofore described. He had no reason to anticipate that without notice or warning, and without allowing him sufficient time to alight, the driver would suddenly start the truck; on the contrary, he had a right to expect that, having brought the truck to a stop and having given him the signal to get off, the driver, who had full knowledge of the situation, would do no negligent act that might injure him while he was in the act of alighting: Hughes v. Murdoch S. T.Co.,
As was stated in Altomari v. Kruger,
Judgment affirmed.