*1
present
upon
of the will.
making
him the
restraint
(1949).
62 A. 2d
Quein Will, 361
Paul
Decree parties. Appellant,
Shaw, Irvin. April Argued 1965. Before C. Mus- J., Bell, manno, Jones, Cohen, O’Brien Eagen, Roberts, JJ. Oyler, appellant.
Richard 8. for Richard with Oarothers, him Jubelirer Oa- A appellees. rothers, May Opinion : Per Curiam,
Plaintiff-appellant brought trespass an action of against damages defendant and claimed in the amount evidence, plaintiff’s At conclusion of $31,500. com- for a motion the trial court defendant’s granted off. nonsuit it refused to take pulsory *2 of nonsuit affirmed. Judgment Mr. Justice Musmanno dissents.
Concurring Opinion by Me. Chief Bell: Justice for The Court motion trial defendants’ granted The to take off. compulsory which it refused nonsuit, Court. judgment nonsuit was affirmed this by among I am convinced there so much confusion is con- the of exclusive subject members the bar on the re- that it is to and to subject wise review the iterate the principles. controlling infer the
Considering evidence and all reasonable ences therefrom and all light conflicts therein the most requires: favorable to the as plaintiff, the law Steiner v. Pittsburgh Railways 254; Flagiello Crilly, the evidence be thus summarized. may Snyder Township Supervisors Road had Ir- agreement with one the Edward H. defendants, the terms which vin, dump he was to furnish a truck and a driver at a certain haul per rate hour to to limestone various designated roads Su- by the Road pervisors. Plaintiff was a Road as Supervisor as well for Roadmaster the Township.
On the evening before the accident took plain- place, tiff telephoned him Edward H. Irvin and asked to pro- vide his truck and a driver to haul cer- limestone to a tain location. On the following day Eugene the Irvin, other drove defendant, the truck to the lo- designated him upon and its cation, plaintiff arrival told to load truck and (b) his exactly what to do with load his and to spread how (c) limestone. The controls raised lowered which the truclc bed were in the operated cab the truck and were by Eugene Irvin. Eugene Plaintiff to the bed directed raise stop. keep raising told to truck and it he to until was carrying a Plaintiff was aware that the truck was put maximum on an additional strain load, half truck’s mechanisms. When the bed raised was way, Eugene prepare move instructed to to giving forward. While instructions, these running to was pull board of the truck in order controlling tailgate.* as the lever As soon plaintiff pulled tailgate practice it was his lever, jump running off board. procedure practice
This fol- had been used by plaintiff previous lowed numerous occasions repeated mishap three or four times without day. unproved next However, some time, unexplained dropped suddenly reason the truck bed *3 running and struck who was thrown from the ground, board to the rendered sus- unconscious, injuries brought. tained the for which this action was proved injured by Plaintiff that he was sudden dropping dump repeat, of the bed of the but, we truck, dropping neg failed to any what caused the ligence part on the of either of the defendants. The happening neg mere of an accident does not establish ligence presumption nor neg an raise inference a ligence. Co., 415 Pittsburgh Railways v. Steiner supra, plain and eases cited therein. It is clear that prove any negligence tiff failed to can therefore damages not recover as he unless, the doc contends, applies. agree trine exclusive control We with the utterly inapplicable lower Court that this doctrine is the facts the instant case. leading The case on the doctrine of con- exclusive Pennsylvania Philadelphia is Izzi v. Transpor- * operated by That lever could have been plaintiff without running standing board; that lever had no effect on the raised and lowered mechanism the bed of the truck. 254 case, In that
tation A. 2d 784. Pa. Co., 559, guest plaintiff, automobile which a who was following trolley, that contended defendant’s trackless injuries detached his due to a flash caused a were pole trolley. re Court overhead defendant’s jected application doctrine, control of the exclusive prior (pages analyzing many decisions said after 564-566): Control
“Exclusive
held
“Plaintiff
Court below
contended and the
doc
under the aforesaid
and circumstances
facts
question of
applied,
trine of
and the
exclusive control
thereunder
P.T.C.’s
was therefore
question
jury.
res
Neither
error.
This was
ap
ipsa loquitur
nor the doctrine
plies:
2d
Montgomery,
A.
Miller v.
255
yet the
of the driver,
in
control
street is
the exclusive
principles
con
negligence
and not that
step
person
or
apply.*
pedestrian,
a
on,
If a
or
trolley
trolley
car
ping
injured, the
is
a
car
off,
company,
operating
in
control
its
is
the exclusive
principles
negligence
exclu
yet
that of
and not
injured
passenger
apply.**
while
If a
is
sive
getting
walking
off
on or
on a railroad track while
falling object
person
injured by
in a
or if
a
a
a
is
train,
oper
in
control of its
the train
the exclusive
is
home,
posses
ating company
in
and the home
the exclusive
is
principles
negligence
yet
sion
owner,
airplane
apply.*** If
not that of exclusive control
plane
killing passenger,
exclu
crashes
a
was
pilot,
sive control of the
but the exclusive control doc
apply.****
factually
Finally,
not
direct
trine does
point
ly
pole
controlling,
become
when a
has
dislodged
trolley
from a standard
and with or without
injures
trolley
person,
an electric flash
a
operating
yet
company,
the exclusive control of the
(1)
preponderance
fair
must
a
negligent
of the evidence that
defendant was
in a
specific
(b)
negligence
proxi-
manner and
its
was the
*“ Even when an automobile is driven off the road on
curve
pas
and into a
and its driver
creek
is killed and the
senger
seriously injured,
the test
is
is
doctrine
apply.
Pa.,
Montgomery,
not
Miller
of exclusive control does
v.
397
supra.
**“
Philadelphia Rapid
Company,
Transit
v.
Pa.
Staller
Philadelphia Rapid
Company,
100,
v.
Transit
Cutler
351,
Atl. 434.
319 Pa.
***“
Pennsylvania
235,
Railroad
v.
319 Pa.
Dobrowski
Reading
Company
Philadelphia
Railroad
Hum
v.
Atl.
Morow,
Pa., supra;
also,
Hadd
mell,
v.
cf.
Stewart
Neff,
Lotito,
Novak v.
Bank,
v. McDowell National
Davies
2dA.
supra.
Blair,
****“ Rennekamp
“Before infra these cases which we discuss to propositions, it wise deem the above mentioned we which reiterate that the doctrine of exclusive control, the dangerous inis has often been termed a doctrine, analysis applied only very condi last under unusual long negates only necessity. of It tions and because rules become rules of evidence which have established applied of . . . The should be substantive law. doctrine present: only following are where all of the elements thing un caused the accident is where the manu der the exclusive control* of or was made or by (b) in the or defendant; factured the and accident happen jury ordinarily if exer would not the defendant or article cised due or made manufactured the care, (c) cause with and evidence due where the of the care; injury equally to of the or accident is not available parties, exclusively both with but is accessible to and possession (d) the the acci defendant; very exceptional dent itself is unusual like and the lihood of harm to could one his class reasonably prevented been have foreseen and (e) general principles due care; exercise applied not theretofore have been such to facts.” * satisfy requirement In this order to held cases have that defendant must had both con exclusive agency injuring management exclusive trol of over Co., supra; Izzi v. P. the accident: T. circumstances McKerns, A. 2d Annett v. Amer Saldukas 591-592, A. 2d Stores Silverman v. ican Superior City Bottle Ct. Glass Oil Superior Genetti, Anno., Ct. Drill James, Harper §19.7; A.L.R., Torts, The Law of O.J.S., §220(8). (This Torts, §42; 65 not Prosser, footnote Law original.)
It is clear that not principles of negligence the doctrine of applicable are *6 instant case and non- these reasons judgment suit should be affirmed.
John A. Robbins Appellant, Inc.,
Airportels, Inc. Mtjs- J., Before C. Bell, April 1965. Argued O’Brien and Roberts, Eagen, Cohen, Jones, manno, JJ.