*1 intended a hard and fast rule as to how much time must pass, proper after announce, police knock and before the may Each enter. case should be decided on its own merits. police properly
I acted believe and would affirm judgment of sentence lower court. Watkins, P.J., join Voort, J., der Van in this dissenting opinion. (et Appellant).
Noon v. Knavel al., *4 J., Argued P. Before November WATKINS, Jacobs, Cercone, Price, Voort, and Hoffman, der Van Spaeth, JJ. Strayer, Kirshner, him and
Charles with R. Thomas Rosenberg, Solomon, appellant. Kirshner for &
Gary for Sharlock, F. with him Repcheck, SharlocJc & appellee, Company. The Baltimore & Ohio Railroad Jr., Phillips DiFrancesco, Saylor
J. R. Samuel Francesco, Rose, them Di James with Robert G. James R. Rose, O’Malley, Spence, Custer, Saylor, F. & Wolfe Gleason, Markovitz, Francesco, and Yost Di Shahade & O’Malley, appellees. &
Opinion J., April 22, 1975: Hoffman, Appellant, Telephone Company Penn- General failing sylvania, contends that the lower court erred in grant judgment non on motion for obstante veredicto its grounds negligence was not the its appellee injuries. cause of Noon’s public Appellant, public utility, the owner of a adjacent telephone immediately was located booth which grade crossing of the Baltimore and Ohio Railroad City Bedford of Johnstown. Street approximately curb booth was located feet from the 9% *5 Street, only Bedford five feet from the railroad track, so close actually it was on located the rail- right-of-way. road’s approxi- The railroad tracks run mately approach grade north and south. The cross- ing east, from the Street, long down Bedford includes a downgrade. Immediately grade before crossing, beginning approximately at the intersection of Adams Street, vehicles pro- must traverse an S-curve while still ceeding downhill, prepared and be to brake at rail- crossing, road which flashing is marked lights, but protected by crossing gates. booth was position located in coming such a that an automobile downhill negotiate which failed to the second half of easily S-curve could Despite fact, strike the booth. this no special safety precautions were taken in the construction the booth. The appellant’s placement found that the booth created an danger appellant’s unreasonable customers, and negligence thus part constituted on the appellant. appeal No finding has been taken from the only negligence, finding but negligence from the that this was a injuries cause of the involved in this suit. August 30, 1969,
On Knavel, Jan E. a defendant below party but not a appeal, to this noticed that his car’s brakes functioning were not properly. approximately At p.m., 9:30 Knavel Station, visited Allison’s Service approximately located two blocks from Knavel’s Allison, home. proprietor Ned (also J. of the station below), defendant informed Knavel that he lacked necessary parts required permanent repairs. for Knavel requested then temporary repairs be on the made plugged brakes. hydraulic Allison then line brake leading to the left wheel, rear and instructed Knavel to return day his permanent car the next repairs. De- spite this warning, Knavel drove some 14 miles to a friend’s Rummel, residence in where a cook-out was progress. Knavel testified that he on had no brake trouble approxi-
this route. Knavel remained the cook-out for mately During time, one and a half hours. he drank Fickes, brother-in-law, two beers. Knavel and his Dean “Coney get dog. then set out for Island” to a hot Knavel proceeded down Route towards Johnstown. At about *6 a.m., Borough police parked a Dale who had been officer, road, illegally passing the side of the noticed Knavel car, pursuit. another out and set Knavel testified pedal this about time he noticed that was his accelerator half-way position, were stuck and his brakes working point, applied at all. At one emer- Knavel his gency brake; momentarily failed slowed the car but this stop it.
Despite car, this of lack control of his Knavel any able avoid until reached collision he the section containing Bedford and Street treacherous S-curve grade crossing. Testimony of some witnesses indicated pole glanced light that Knavel’s car off a located on approxi- outside of the first section of At the S-curve. mately point, Knavel first saw that a and Baltimore grade crossing, Ohio Railroad train had entered the southbound, speed approximately at a two or three per hour, miles completely now and almost blocked gave hope intersection. up Knavel testified he then controlling awaiting simply eyes, his car and his closed Knavel’s car with the collided front of collision. slow-moving locomotive, through phone then crashed booth in which appellee, Noon, standing, making a against call. Knavel’s car came rest un- occupied car, property on the lo- the service station adjacent cated phone Although to the booth. Knavel suf- only fered legs minor Noon both as a injuries, lost his result of the accident. brought against Allison,
Noon Knavel, suit Ned J. trading doing Station, and business as Allison’s Service ap- the Baltimore Company, and Ohio Railroad and the pellant, Telephone Pennsylvania. General Company of On 25, 1972, October in the of Common Pleas Court County $216,761.00 Cambria returned a verdict against favor of Noon and Knavel Tele- General phone Company. Post-trial motions were on denied and 26, 1973, judgment October lower court entered on judgment, Telephone this verdict. From this the General Company appealed.
I general, negligence an actor is liable if “(a) protected against the interest is invaded unin- invasion, tentional “ (b) respect the conduct of the actor is with other, persons or a class of within is in- which he cluded, and
“(c) legal the actor’s inva- conduct cause of the sion, and
“(d) the other has not so to dis- conducted himself as *7 bringing able himself from an action for such invasion.” Restatement of 2d, Torts (1965). 281 In the instant § case, question integ- there bodily is no that the interest in rity protected against is unintentional The invasion. appellant’s negligent; below found that no actions were appeal finding. has been taken from that con- No issue of tributory negligence assumption or of risk is in involved appeal. only questions appellant’s this in involved request judgment therefore, are, a its whether n.o.v. respect person negligent actions were with to a Noon’s position, legal appellant’s and whether conduct a injuries. cause of Noon’s properly
It well is settled that the “could be only respect proceeded liable with to those harms which foreseeability ren from risk or a hazard which 488 Pa. negligent.” Griglak, dered its conduct Metts v. 392, 396, 684, re 264 The Restatement A.2d 687 re problemit is sometimes fers to this as “the hazard Palsgraf Palsgraf problem, generally after ferred Long Co., 389, (1928). Island R. 248 N.Y. N.E. 99 2d, (b), Comment e to Restatement of Torts another §281 part quoted Griglak, which is Metts v. at n. explains 2d “[cjonduct negli A. at n. 2, that is gent subject because it tends to interests another to an unreasonable risk may of harm. Such a risk be made up of a number of hazards, frequently different are of a more or less definite character.” Comment f notes “[wjhere the harm which in fact results caused is by the intervention of factors or forces which no form part recognizable risk involved in the con actor’s duct, ordinarily the actor is not liable.”
Appellant’s argument put point, simply, on this is assumption based on the jury’s finding place- phone ment of solely booth was was based proximity on its downgrade to the S-curve road, part was not based even in on the fact that the booth away was located a few feet from the railroad grade crossing. track assumption As this ade- quately supported by record, appellant’s argument on point this rejected. Appellant’s must be ap- contention is parently based on Jackman, one statement William T. engineer safety who testified witness, as Noon’s taken out context. In statement, this Jackman noted “be- cause of topography, grade, down the two curves street, only it was a matter of time before that an going accident was Nevertheless, occur.”2 Jackman re- ferred to the discussing railroad tracks several times in opinion his safety on the of the location of the On booth. cross-examination, proximity Jackman indicated that the Although problem may separate be considered a *8 element of the negligence, cause of action for it is often treated aspect as an problem legal of the of cause. See (b). Comment h to §281 Although objection
2. was made in the court below to the expert conclusional statements, form of the witness’s this issue appeal. has not been raised on of the booth to the railroad was one of that led the factors him to dangerous. believe that the location was addition, jury was not limited to Jackman’s testimony determining why whether or the location the booth jury was hazardous.3 The took a view of scene of the photographs studied some accident, two dozen scene, and testimony heard several volumes of con- cerning the jury circumstances of the accident. The had ample evidence, apart expert even from testimony, determine whether the location of the booth was hazard- ous, so, Indeed, judge charged for what reasons. to determine whether “it foreseeable [was] telephone company placement that the of the booth at crossing the railroad on Bedford bottom a Street/at grade, S-curve, highway at the end of on Route harm, Street, otherwise known as Bedford that the risk of experienced by Noon, could such as that occur?” Mr. (Emphasis supplied.) judgment n.o.v.,
On motion the evidence and all arising reasonable inferences therefrom must be con- light strued in the most favorable verdict winner. Flickinger Ritsky, Estate v. 452 Pa. A. 2d 40 jury might phone well have found that the dangerous position proxi- booth in a was because its mity track, to the railroad addition combina- sloping proximity dangerous tion with its to a curved and must, therefore, finding road. We assume that such a Thus, reject appellant’s made. we must contention grade crossing the hazard of a accident was one finding negligence the hazards on which the based. “It must be that it remembered is not this Court’s func- judgment tion to substitute our or evaluation of evidence upon where there is some credible evidence which to base jury’s Supreme As our verdict. Court said in Smith expert After the witness delivered statement on which part appeal, appellant’s now bases this counsel its usurping jury. asked that it be stricken as function of the *9 138-139, 134, Pennsylvania, Telephone 397 Pa. Bell Co. of ‘ presented (1959): evidence 153 A. 2d 479-480 [T]he by reasoning it, that from without must be such resort sought guess, prejudice reach conclusion or can only by plaintiff, must be the and not that the conclusion ” Eldridge logically . one which can be reached. . Superior 381, 387, 2d Melcher, 226 Pa. Ct. A.
(1973).
jury might reasonably
that a
have found
As the
crossing
railroad
accident
hazards which
was one
placement
negligent,
that
made the
of the booth
and
actually
proceeding
harm
accident which
occurred was a
hazard,
say
appeal
the haz-
from that
we
on
that
cannot
negligent
placement
ard
rendered the
of the booth
Noon,
was unrelated to
harm which
suffered.
appellee,
ap-
negligent,
though appellant’s
Even
conduct
if
pellant
only
injuries
can
be liable to
for Noon’s
Noon
negligence
legal
those in-
its
was the
cause of
juries. Pennsylvania
legal cause
now follows the rules on
2d,
set forth in
the Restatement
Torts
and
§§431
Lojeski,
Whitner v.
437 Pa.
(b) relieving there is no rule of law from the actor liability negligence because of the manner in which his 432(1) provides has resulted harm.” Section “[ejxcept (2) [dealing as stated in Subsection with con- forces, pro- current each of which alone sufficient harm], negligent duce the actor’s conduct is not bringing substantial factor about harm to another if the harm would have been if had sustained even actor negligent.” Thus, 431(a) not been under Sections 432(1), appellant’s negligence proxi- in order for to be injuries, mate of Noon’s it cause must first be found injuries. be a factual cause those Although point ap- there is confusion some on pellant’s brief,4 appears it contends that telephone of the booth not a location appellant’s injuries. Appellant factual cause of contends injuries even if had Noon’s would have occurred ex- due ercised care in the location and construction hypothetically possible booth. While it is might Noon have been car if the struck Knavel’s even *10 telephone slightly booth had located farther from the been grade jury crossing, might reasonably that have found injured appellant Noon not would have been at all had the positioning appears in exercised due care the booth. It had, placed example, that if the booth for been inside the station, suggested point by service at one Noon’s ex- pert witness, injured Noon would not all.5 have been at Moreover, §432(1) Comment b to indicates that “this exclusively, although Subsection is frequently, most not applicable where the in actor’s tortious conduct consists precautions required a failure to take some are for protection person of another’s or land or chattels. case, extent, harm, such if the same both in character and have would been sustained even had the actor taken required precautions, even his failure to do so is not a perceptible bringing in factor it be a about cannot producing supplied.) (Emphasis substantial factor it.” It that, was not unreasonable for the decide had to location, safer, booth been located either another, injured, Noon would have been he not have or would injuries of extent. sustained the same character and Therefore, say negligence appellant’s we cannot now injuries. was not a cause in fact of Noon’s appellant “[a]lthough 4. Thus states the location certainly injuries phone booth a factual cause was Plaintiff, legal was not cause.” Appellant’s agent also testified booths protected by bumper certain are four- or steel five-inch locations protect posts; posts no such were booth involved used this case.
Appellant that, negligence next contends if its even injuries, cause in fact of Noon’s lead- several events ing up highly were extraordinary accident so toas superseding Appellant constitute causes the accident. cites the 2d, Restatement §440, of Torts which defines superseding person cause as “an act of a third or other by prevents force which its intervention the actor from being liable harm to another which his antecedent negligence is a bringing substantial factor in It about.” appear any does not by appellant of the factors listed would superseding amount to a cause either under the Re- Pennsylvania statement or under law.
First, appellant argues that Knavel’s various acts negligence driving car, driving a defective after drink- ing, failing appropriate to take preventive action when he discovered going that his car was out of control superseding amount to a appellant’s cause injury. Note, however, theory that under the of this case negligent because it precautions failed to reasonable take protect its against by business invitees harm inflicted vehicles persons.6 driven third Section 449 the Re- *11 §344, provides 2d, Restatement .of posses- Torts that “[a] open of land public entry sor who it holds to the for for his busi- purposes subject ness liability is public to of the while members they upon are purpose, the land for physical such a for harm by accidental, caused negligent, intentionally or harmful acts persons of third animals, or possessor and the failure of the exercise reasonable care to (a) being discover that such likely acts are done or are done,
to he
(b) give
warning adequate
a
to enable the visitors
harm,
protect
against
avoid the
or otherwise to
them
it.” Com-
ment
“persons
(b)
indicates
section includes
out-
endanger
safety
side
land whose acts
of the visitor.”
Freeman,
section has been followed in
This
Glass v.
(1968)
(child
tractor,
A. 2d
drove unattended
invitee)
Valley Forge
which struck
and Moran v.
Drive-In
Theater,
Inc.,
(1968)
(firecracker
431 Pa.
than “ in- provides part he fact that §447, [t] is negligent in itself or tervening person of a third act supersed- negligent not make a manner does done negligent ing the actor’s to another which cause of harm about, if . bringing . . a substantial factor conduct is existing knowing (b) the situation man reasonable re- person done third would 'when the act person had extraordinary third gard highly that the it as supplied.) Appellant’s (Emphasis citation so acted . . . .” except the actors puzzling, as none of section is of this be at all were found to and Knavel assuming the actions However, even in this action. Railroad, other Allison, the Baltimore Ohio say actions that their it is hard to negligent, were actors time when “highly extraordinary,” viewed were highly Thus, extra- it was not actions were taken. those *12 temporary inadequate ordinary to make an for Allison Knavel, who system when repair brake car’s Knavel’s approached night lived away, two blocks him late at parts permanent when Allison lacked re- make pair. highly extraordinary It was not for the Dale Bor- ough police pursue officer to Knavel he when observed riding through Knavel their town with his car out highly extraordinary control. Nor itwas for the locomo- engineer tive prevent to be unable to a collision when grade Knavel’s car hurtled towards out crossing, control, approximately per 70 miles v. hour. See White Rosenberry, (1970), A. 2d 341 on application principle. of this appears appellant’s
It
real claim that the
is
exact
particular
manner in which this
accident occurred could
have been
appellant’s
not
foreseen
inman
reasonable
position.
requirement
But this has never been a
negligence.
ago
law of
long
stated,
As Mr. Justice Holmes
necessary
“It
that the defendant should have had
particular
notice of the
method
which an accident
occur,
possibility
would
if the
of an accident was clear
ordinarily
eye.”
prudent
Munsey Webb,
v.
231 U.S.
150, 156,
Pennsylvania,
34 Ct.
S.
it has
long been
held to be
error to
reversible
instruct a
that,
negligent,
in order to be
the defendant must have
been able
particular
to foresee the
which in fact
accident
Shipley
Pittsburgh,
occurred.
321 Pa.
Although appellant stating is correct it can only be argument liable for foreseeable its in this harm, misapplication case is based foreseeability on a First, standard. jury’s usurp asks us to determining function in what is foreseeable when reason-
213
might disagree, contrary
Supreme
able men
to our
Court’s
recent
original
statement
the
actor should
“[w]hat
have realized
say
and
what
reasonable man would
highly extraordinary are,
course,
questions
of
fact
which
majority
must in
jury.”
of
left
cases be
Flick
inger
Ritsky, supra,
75,
Estate v.
at
lant’s appellee was the of cause injuries, Noon’s and the court below did not err in re- fusing grant judgment n.o.v.
II Appellant argues j udgment that if it not entitled to n.o.v., is, alternative, it in the a new trial. entitled
Appellant computer printouts first contends that two accidents, reported summaries Common- Department Transportation, wealth’s which occurred vicinity site, were inadmissible accident hearsay. Appellant although contends that the records might otherwise be admissible under the Uniform Busi- May 42, 4, ness Records as Evidence Act of P.L. 1939, they No. b, and in- P.S. were §§1 §§91a persons admissible because the who entered accident reports necessarily were not witnesses to accidents reported, therein reports prepared nor were the under Appellant the direction or control of such con- witnesses. reports were, tends that therefore, these inadmissible hearsay, citing Kasnot, Haas v. A. 2d 171 printouts Noon had these into evidence admitted Napoli, out of order so that Theresa a Division Chief Pennsylvania Department Transportation, could present attorney be to authenticate them. Noon’s expert witness, Jackman, would time his believed ap- rely opinions. on them as the basis of his When evidence, rely peared on this that Jackman would objections to its ad- had that several of defendants evidence, original proponent missibility, Noon, Appellant, from moved that it be withdrawn evidence. As however, objected from evidence. to this withdrawal appellant objected trial court to a motion alleged defect, might he cannot served to cure this have complain appeal. it on
Second,
court erred
that the lower
contends
*14
against
grant
failing
trial
Noon’s case
to
a new
as to
Ap
trading
Allison,
as Allison’s Service
Ned
Station.
J.
pellant
judgment
in favor of Allison
the
contends that
grant
against
weight
“The
the
of the evidence.
trial
a new trial
is within the sound discretion
the
present
offering
judge,
all
testi
who is
at the
relevant
appellate
mony
.”;
will reverse that decision
. .
court
capriciously
“if it
lower
acted
determines that [the
court]
Ridge,
palpably
435
abused its
Austin v.
discretion.”
be
1, 4,
(1969). “A new trial should
215 Moreover, jury his Alli- home.7 if even believed repair, might son making had been it faulty repair have concluded that a made to serve for trip two-block was not of an cause accident occurring highway driving. after miles of appellant testimony
Finally,
contends that the
one
witness to the effect that Knavel did not have insurance
requires
granted. However,
that a new trial be
the answer
by appellant’s
came out on cross-examination
own attor-
ney,8
object
cannot
now
to its admission
Suznevich,
error. In Tuttle v.
Pa.
A. 2d
(1958),
Judgment of the lower affirmed. court is Concurring Opinion *15 Price, J.: presents appellant’s case in This a situation which negligence situation, “passive” which was un- created a upon acted able to wreak its remorseless destruction until by external, independent question force. The causation depth by type in this examined in our of situation was Flickinger Ritsky, Supreme Estate Court address, Although he did not know Knavel’s exact 7. Allison village of Alum Bank. knew that he lived within the small attorney you “Q. [by appellant] find for the : Did ever out the name of that driver? damage, the Knavel; about the went to see'him
“A. because I thought have.” jack, had insurance and he didn’t I he etc. writing for a A.2d 40 There Justice Pomeroy, acknowledged unanimous causa- court, the issue by “passive.” tion could not be label resolved resort Instead, gov- (Second) (1965) Restatement Torts §447 intervening provides negligent erns. That section that the person (such act third as that of defendant Knavel case) liability does not relieve a if: defendant “ (a) the actor at the time of his conduct might
should have person realized that so a third act, or
(b) knowing a reasonable man the situation exist- ing when act person of the third was done would regard highly extraordinary it as that the third person acted, had so
(c) intervening consequence act ais normal of a situation created the actor’s conduct and the extraordinarily neg- manner which it is done is not ligent.” (a)
Comment a to clause refers the reader §447 §449, provides: which
“If the person may likelihood that a third act particular manner is the hazard or one haz- ards negligent, makes actor act such an innocent, whether negligent, intentionally tortious, or prevent criminal does not being from actor liable thereby.” (Emphasis added) harm caused majority As notes, the record in this case more adequately supports than an inference that the hill and only S-curve were not the features which made appellant’s phone location of unreasonably pre- booth carious. The supports record neg- the inference that the ligence placement involved was the of the booth in an area likely where drivers were to lose control of their auto- mobiles. The fact particular the driver of this car may drinking, have been may the fact that his accelerator malfunctioned, have may fact that his brakes disrepair have been in are all factors which combined *16 cause him to lose control of the automobile. Because an uncontrolled appellant’s automobile is the hazard which negligence exposed appellee, the manner in which control was operate lost cannot appellant liability. to relieve (Second) Restatement supra. §449, Torts Nor can fact that the automobile richocheted from the train in its path, flying instead directly phone pre- into the booth, appellant’s vent liability. appellant Once assumed the risks of an automobile, uncontrolled the manner in which that uncontrolled automobile phone was directed into the booth was also one of the risks assumed. Restatement (Second) Torts, supra, (1), 442 B. §§435 appellant’s negligence
Because awas cause in fact of appellee’s injuries, and the manner in which the accident exactly occurred is appellant the risk which created, I majority’s concur in the Judgment decision to affirm the of the lower court.
Dissenting by Opinion J.: Jacobs, early In morning August 31, 1969, appel- hours of Noon, plaintiff Robert below, lee severely injured was operated when an automobile Knavel smashed Jan E. through telephone booths where Mr. Noon was at- tempting place appeal, appellant call. Telephone Company Pennsylvania General argues, alia, inter telephone booth, the location of its wherein plaintiff did not injured, constitute a consequently cause of the should accident granted judgment be agree placement n.o.v. I that the of the bringing booth was not a substantial factor about this accident would therefore reverse the decision below. injured booth where Mr. Noon was edge paved
located area of a service station along Street, leading City Bedford a road into the approximately east-west, Bedford runs Johnstown. Street coming with traffic from the inbound Johnstown *17 east, moving city. telephone west to The booth was positioned on the south side of road sidewalk. and Directly to the east of the booth a line of tracks railroad approximately runs north and south.
The booth and the tracks are at bottom hill of a upon which rises to the east which Bedford Street exe- cutes an approaching city S-curve. Thus traffic from proceeds negotiates the east downhill while first a left right and then a crossing hand curve before the tracks continuing past phone booth on its left. The regular tracks are stoplight marked with a turns red approach, flashing lights when trains as well as to warn traffic.
The events which culminated in the Knavel car strik- ing Robert Noon in his booth were set in mo- evening August tion on the date, 1969. On that Jan Knavel, E. whose driver’s suspended, license was driving around with another man when he noticed that his brakes were operating properly. not He took car his Station, Allison’s only Service located two blocks from Mr. Knavel’s requested home.1 Mr. Knavel temporary repairs be made on the brakes when he found that Mr. Allison was unable necessary at that time to make the permanent repairs. proceeded plug Mr. Allison hydraulic brake line to the left rear wheel2 and instructed Mr. Knavel to return the day proper vehicle next for present 1. This is not Jan Knavel’s address. Since the inci- herein, dent discussed he has moved to Ohio. temporary fixing This is a measure a broken brake line equated and is not proper repair system. to be with a of the merely prevents leaking It out, all the brake depriv- fluil from thus ing entirely. By plugging car of brakes the line to the left wheel, rear although that wheel itself has no brake the brakes on operating. the other three wheels are still The result of this is operating only three-quarters braking vehicle is with of its system, any attempt stop by application to slow or hydraulic pull right, i.e, away brakes tends car to the from running the free wheel. repairs. condition, Aware that his car was in a defective Mr. Knavel companion drove himself and his to a cookout away some hilly distance over terrain. There drank he leaving and socialized, around 1:30 a.m. to drive into later, approach- Johnstown. About a half he hour as was ing police parked Johnstown, patrol in his officer, car road, the side of the observed him commit traffic by passing violation car another in an intersection at a high speed. rate of police pursuit, out in set but the Knavel car con-
tinued to accelerate. Mr. Knavel testified that about this time pedal he noticed his accelerator in the stuck position half-way operating and that his brakes were *18 at attempted remedy He all. testified further that he to by tapping the gas pedal, only situation on the which served to to drive it the floor increase the forward speed attempted his he of vehicle. He stated also that to apply emergency the the brake. That slowed car some- what before it too failed. A number other witnesses of testified that the Knavel car down on more slowed one or point leaving long at occasions, one on the skid marks pavement pulled right, curb, which in to the onto the the having of manner a car no brakes the wheel. on rear left Travelling speeds at and 80 estimated between 70 hour, pursued by police miles an the with emer- car its lights flashing gency sounding, the car siren Knavel S-curving downhill, preceding entered the stretch of road precise moment, the track and At booth. operated by a train the Baltimore and Com- Ohio Railroad pany advancing slowly into the the intersection from Testimony of north. some revealed that the witnesses glanced speeding light pole car off a located on the steel S-turn, striking pas- outside the curve the the of first of senger of the the lane side vehicle. It careened into opposing bordering up traffic and drove on the sidewalk approximately lane tracks outbound where the train road, apparently an effort avoid intersected with the point collision with the train which almost had this completely roadway. blocked Mr. Knavel denies interpretation driving, however, his and testifies point given up controlling hope at that he had car his eyes impact awaiting and shut his with the train. n The impact came, passenger side of the com- car ing engine. in contact with front The train collision hurled the car five or six feet into the air and property gas onto the station where came against unoccupied facing car, upright though rest still opposite direction, path total wreck. flight impact car’s from the with the locomotive impact parked appellant’s phone with the car was booth plaintiff-appellee, making Noon, stood Robert passage call. The car’s obliterated the booth and shat- legs tered occupant causing of its addition seri- injury body. ous to the remainder of Noon his Mr. hospital legs rushed to the ampu- where both his were tated and he was treated for other his broken bones and injuries. internal except E. Jan unscathed for an Knavel, forehead, abrasion on his fled the scene of the accident on foot. He police turned himself in at the station about an hour later. plaintiff-appellee brought against suit Mr. Kna-
vel, Allison, Ned Station, Allison’s Service t/d/b/a Baltimore and Company, Ohio Railroad appellant, and the Telephone Company Pennsylvania. General After a *19 lengthy jury trial the plaintiff, returned a verdict for the Noon, Robert in the $216,761.00 against amount of de- fendants Jan E. Knavel Telephone and the General Com- pany. A verdict was returned for Ned the Allison and Baltimore and Telephone Ohio Railroad. The General Company appealed, alleging alone error in the trial judgment court’s denial of its motion for n.o.v. and mo- tion for newa trial. plaintiff-appellee’s
It is appellant contention Gen- Telephone Company eral respect was to Mr.
221 by positioning Noon disregard its booth in unreasonable safety occupants, of its and that the of location the proximate booth plaintiff’s injuries. awas cause of the appellant’s It primary that, assuming contention even finding correct the location of unsafe, appellant’s posi- booth and conduct in tioning negligent, any negligence part its booth on plaintiff- was not a cause of appellee’s injury. question I shall discuss the of causation deciding without whether in the conduct of the fact tele- phone company locating negligent. booth its expression
Proximate cause is widely an utilized comprehend tort law to all the varieties of diverse issues and determining considerations which inherent in are responsible given cause of a result.3 Much has been writ- ten clarifying courts and hopes commentators in subject4 this difficult but largely, perhaps still area is by nature, guides pre- wilderness and available less might Pennsylvania cise than attempts one like. recent have bring concept by been made to order to the dis- pensing by isolating with sepa- traditional labels and rate compound elements of its nature.5
The
principle underlying
fundamental
issue
negligence
causation is that the mere
existence
injury
anyone.
impose liability
occurrence
on
cannot
See, e.g.,
Lojeski,
448,
Whitner v.
437 Pa.
3. See W. Prosser, Handbook of the Law Torts §§41-45 (4th 1971). ed. See, e.g., Flickinger Ritsky, 69, Estate v.
4.
452 Pa.
305
Lojeski,
(1973);
448,
Whitner v.
A.2d 40
Pa.
(1966);
v.
Recently, however, attempt has been made to re- define distinguish the term and to its individual elements applying concept Recognition as an aid to the cases. given has been to the view that cause distinct factual “legal from true which is often called cause, *21 clarity’s cause” for in sake.6 Whereas factual cause “is variably question [proximate legal a of fact cause] essentially problem ‘is a of law whether defendant .. . the legally responsible should be for what he has caused.’ Prosser, §49, (1964). W. Law of Torts at 282 ‘It is [a question] policy imposing legal responsibility.’ the to of as Flickinger 74, Ritsky, 69, Id. at 309.” Estate 452 Pa. v. 40, (1973). legal 305 A.2d 43 thus be Proximate or cause employed limiting by comes a method the the courts for legal myriad responsibility con of an individual for the sequences that could flow from W. Pros his conduct. See ser, §§41, (4th Handbook of the of 42 ed. Law Torts 1971).7 concept
theOn other hand the of factual causation has (Second) been related the of Restatement Torts §§431 Flickinger (a), (1965) by Supreme 432 the Es- Court supra.8 express Ritsky, tate v. has These sections what “legal adopted The term cause” been some authori- has (cid:127) ties, treatise, notably of the Law Dean Prosser in Handbook his cause,” preferable “proximate (4th 1971), of Torts ed. as §41 gener- legal probably spontaneous associations to eliminate all the Pomeroy ally term. Justice uses connected with the latter interchangeably of the issue in discussion terms his detailed 448, (1970). A.2d 889 Lojeski, v. Pa. 263 Whitner 437 subject reading would of Dean Prosser on this 7. A close concept suggest a factual causation as that he does view cause, totally separate it an rather from but sees along larger concept, with unit included within individual liability operate with legal to limit cause can cause. Thus factual a between law when connection de the aid a rule out of However, injury proven. our be cannot fendant’s conduct and the simply sepa expedient to simpler and more courts have found Ritsky, Flickinger v. 452 Estate the two at the outset. See rate Lojeski, ; 263 437 (1973) v. Pa. A.2d 40 Whitner Pa. A.2d 889 (1970), Lojeski, A.2d 889
8. Whitner determining been called “substantial factor” test causation, although the Restatement makes no distinction legal simply between factual and cause refers to legal components issue as one of cause. In §431 legal distinguish are cause identified so the substan- as to legal requirement policy. tial factor from the issue Negligent legal conduct is considered to be cause harm, according section, are when two conditions present: bringing conduct is factor in substantial harm, about the and there is law an absence a rule of relieving liability. requirement actor The negligent action abe factor is further refined substantial by §432(1). actor’s is notasub- “[T]he conduct bringing stantial factor in about harm to another if harm would have been sustained even if had actor negligent.”9 application not been can of this section *22 question liability eliminate the of a defendant’s at the grounds outset on the the that conduct was not a substan- factor, producing tial cause, and therefore not a true in injury. the electing
In
to follow the
of
Restatement
rule instead
Pennsylvania
Supreme
the former
rule,
ex-
the
Court
plained
superior
the
speaks
breadth of the section. “[I]t
‘negligent
...
conduct,’
to
which denotes
[defendant’s]
physical
legal
the
act or omission involved well
the
as
as
Supreme
adopts
the
Court
the rule formulated in the Restatement
(Second)
(1965)
of
a
§432
Torts
statement of the law
(1)
preferable
Pennsylvania's
prior
qua
to
“but-for” or
non”
“sine
test,
Township
Uncapher,
as it had been stated in Burrell
case,
(a)
9. An to this rule stated in is Restatement ond) (1965), (2) problem of Torts the of §432 concerns concurrently operating forces, negligently one set of which was cases, in motion the defendant. such if both would forces damage, the be sufficient alone to cause the conduct defendant’s producing will be as a seen substantial in the harm. factor concept negligence; negligent of it conduct relates bringing the substantiality the in element of about legal result, requisite which is of cause as stated substantiality present says if (a); it that is not §431 irrespective the the harm would have been sustained negligent 456-57, Lojeski, supra, at conduct.” Whitner v. actually ac- A.2d at 893-94. the Restatement What complishes, then, bring together is to under the substan- tial element two defendant’s con- factor features the plaintiff’s tribution to the harm: the itself conduct negligent. quality it If that which makes the conduct operation pro- both features do not coincide in active negligent plaintiff’s injury, duce conduct is not producing substantial factor and there be no harm can liability.
Keeping adopt- in mind the Restatement rule Pennsylvania elucidating purpose ed for the substantiality causation, apparent concept is present conduct of the in the case does requirement. even The conduct of meet this threshold plaintiff-appellee Telephone Company which General is the location of its booth claims hill, at the bottom of a close to a sidewalk on the outside Testimony roadway. S-curving the second turn in an expert plaintiff’s from the was introduced in an effort theory support appellee’s booth was lo- safety disregard of its cated unreasonable occupants due to the the hill and dou- combination of testimony revealed, however, ble curve.10 The *23 agree provides support for am unable to that the record I by endangered the idea that the booth was the railroad expert, engineer, plaintiff’s track. The own a traffic stated due the booth was unsafe restated his the location of opinion that possibility curving, the that car would road and downhill damage in that area and cause the road somewhere deviate from anything He that the of the curve. stated situated on outside analysis, crossing making in the railroad he had considered concerning gave the only testimony he the tracks was the but plaintiff's injuries were when a car severe sustained operated recklessly, by carelessly, or even unlicensed pursued vehicle, by police drinking, man who had been brakes, with the the floor accelerator stuck to and without sped high speed at a of train rate into a and was cata- pulted through into the on a course which took it the air appellant’s booth, occupant, with innocent and be- its yond. path of situation the booth in the destructive undeniably of Mr. in- Knavel’s machine was one of the finitude of events and conditions which led to Mr. Noon’s tragic injuries. However, feature of location its allegedly which made the the in so conduct placing negligent, i.e., it hill S-curve, the and the was not by plaintiff played any part shown the to have in the acci- apparent accident, dent. it Rather seems the same with injurious results, same the if would have occurred the speeds Knavel vehicle had bounced off a train m.p.h. phone occupied by excess of 70 into the booth Mr. Noon, departed whether the road from curving. suppose downhill and To hill the causing the curve were speed instrumental the or di- rection of the car under the\circumstances revealed the record, they responsible or that in some naanner were or, angle the collision with the flying train car took to telephone booth, obliterate the imper- would be speculation. missible See Barber Co., v. John C. Kohler danger regardless of accident position was the same of the booth’s respect employees witnesses, tracks. Other rail- responsible road running trains, for the safe stated that presented booth and the train no hazard to each other. support jury’s finding An effort has made to been
causation reference to the view of the accident scene and photographs Ordinarily, submitted in evidence. a view cannot intangible be concepts, considered evidence such cause Jr., damage. Pennsylvania Jenkins, A. See Trial Evidence photographs Handbook A review also §5.10 fails support phone dangerously the conclusion that booth was respect located to the railroad. with
227
(1968)
Puckett, supra;
219,
;
428
224
Pa.
237 A.2d
Noel v.
Aerie No.
Fraternal Order
Watkins v. Sharon
327
of
Eagles,
(1966)
396,
;
423 Pa.
Moreover,
appellant
properly
the
held
herein could be
“only
respect
proceeded
liable
with
to those harms which
foreseeability
from a
risk
the
of
hazard
which rendered
negligent.”
Griglak,
392, 396,
its conduct
Metts
438
Pa.
(1970).11
264
assuming,
A.2d
the
Even
sake
argument,
placement
appellant’s
of
that the
of
booth at
particular
specific
negligent,
its
location on this
road was
thereby
the
might
risk created
was
a driver
lose con
trol
striking
be
his vehicle and
unable to avoid
the
plaintiff
booth. The record
of the
reveals the efforts
raise the inference
the
an acci
occurrence
such
point
probable
dent at this
so
that failure
antici
pate it,
precautions against it,
proof
negli
take
gence.
happened
present case, however,
As it
the
potential
develop
injury.
hazard did not
driver
into
did not lose control
his
the
car due to the curves in
road;
already
the vehicle was
out of control
it en
when
dangerous
highway.
tered the
stretch
His conduct
closing
eyes,
unpredictable happenstance
his
of his
engine
train,
collision with the
of a
and the chance that
by
occupied
vehicle would
be deflected into
area
Griglak,
(1970)
In Metts v.
the booth can be to be fore said either consequence plac seeable or a normal ing public telephone along busy Stanik v. Steu road. ber, (1970).12 439 Pa. Rather than a A.2d 703 probability anticipated reasonable re be as a natural *25 complained of, sult of the conduct such an occurrence here imagined only extraordinary could be a remote and possibility.13 Henkels, 226, See Brusis v. 376 Pa. 102 A.2d (1954) ; Shrum, 146 423, Dahlstrom v. 368 Pa. 84 A.2d (1951) ; Pittsburgh Rys. 289 Co., 579, Guca v. 80 367 Pa. (1951) ; Hoag Michigan A.2d 779 v. Lake Shore & S.R.R. Co., (1877) ; Borough Pa. Schuylkill 85 293 Becker v. Haven, Superior 305, 764, 200 Pa. Ct. A.2d allocatur 189 refused, Superior (1963) ; Farley Sley 200 Pa. Ct. xxx v. Pomeroy 12. The statement of Mr. v. Justice in Stanik Steuber, 327, 703, 439 333, (1970), Pa. A.2d 266 706 would seem apply equally present in the case: “The almost incredible stupidity intervening and recklessness of these . acts of the . . driver would appellant], serve to insulate if insulation [the were needed, any liability consequences.” from for their 13. For the foreseeability Restatement discussion of as it present case, (Second) Torts, relates see Restatement §435(2) (1965), which reads as follows: “The actor’s conduct may legal be held not to be a cause harm to another where looking after the event and from the back harm to the actor’s negligent conduct, appears highly extraordinary to the court brought it should have about the harm.” c to that Comment part: highly extraordinary section in states “the nature of the (with result which has followed from conduct or the actor’s with- intervening force) the out aid indicates the hazard brought bringing or in which about assisted about result among respect the hazards with to which the conduct c, negligent.” §430, part: See comment which in also states may consequence “Harm sustained as a be conduct which is only because, subjects in so far as it another to particular may some hazard. the harm But result some other through so, exposure manner than the other’s hazard. If liability though respects there can be no in all other the even brought the harm about manner is is such as would make actor liable.”
229 System Inc., Garages, Superior Pa. 144 A.2d 187 Ct. 600
Appellants judgment have moved for on the n.o.v. grounds requi plaintiff-appellee prove failed to appellant’s negligent site causal connection between con appellee’s injuries. considering duct and In a motion for judgment n.o.v. evidence all reasonable inferences arising light therefrom viewed in a most favor must be Flickinger able Ritsky, verdict winner. Estate v. supra; Kresovich v. 264 Fitzsimmons, A.2d. (1970); supra. Constr., Inc., Zilka Sanctis Whereas ordinarily questions by of causation are resolved jury, Gold, see Bleman v. 431 Pa. A.2d (1968), duty judge it is trial to determine in requisites first instance whether the of causation can plaintiff’s be met evidence whether it to be jury. allowed to remain of a hands Cuthbert v. Philadelphia, supra. reviewing appellant’s the denial of motion, keep this Court must also mind funda *26 “[t]he principle underlying right mental of of withdrawal jury may only cases from the a is that case be withdrawn in jury clear cases in a which as matter of law the would legally arriving justified not be at a verdict favor party against whom the withdrawal is made.” Pennsylvania Standard Practice 259 The ver dict winner is not entitled to the infer benefit those merely guess conjecture. ences which amount or Kreso Fitzsimmons, supra. vich v. present
In the plaintiff-appellee’s case it was burden prove by preponderance a of the evidence that appellant’s negligent placement phone of its booth was legal my opinion a cause of the harm It sustained. is that jury’s this not burden was met. To sustain the verdict against permit appellant would a result to stand speculation. through had been mere reached Any person This is a difficult aware of Mr. case. tragic injuries hope large Noon’s a would he obtain slight recovery recompense for his as financial some meaningful appellate Nevertheless, suffering. undeserved of the facts dispassionate a consideration review demands Reading into presented they as on the record. are distorting ones that there, which are not record facts justice, does are, serve the nor aban- does not ends reaching doning obligation result facts, as to avoid un- it is dictated order pleasant duty responsibility. Court to It is this give recovery against right innocent those victims a imperative to them it also see who caused But is harm. charged liability not innocent are with defendants brought through damage for of their own. about no fault disputed case it is defendant Knavel this argument plaintiff. caused serious harm to the The damage appellant founded is to be liable this held any on a link so as to render con- causal insubstantial plaintiff’s appellant’s nection between the and the conduct injury pure appel- clear that the conduct of illusion. It is plaintiff appellee identify lant which the seeks to legal injuries cause of his no is more than fortuitous circumstance of accident. judgment against for Robert Noon Telephone Company Pennsylvania
General should be judgment appellant. granted reversed, and n.o.v. for the join J., Voort, J., P. der Watkins, Van dissenting opinion. Appellant.
Commonwealth Kriner,