153 A. 550 | Pa. | 1930
Charles J. Stone brought this action of trespass against the City of Philadelphia and Max R. Leven to recover damages for personal injuries, the loss of his leg, caused by Leven violently striking him with his automobile, having first driven into a defect in the street. *343 Certain other defendants were brought in by the city on sci. fas. They, however, were eliminated as the result of the sufferance of voluntary nonsuits. The trial judge entered a compulsory nonsuit as to Leven. The suit proceeded against the city alone and resulted in a verdict in plaintiff's favor for $35,000. Judgment was entered on the verdict as rendered without abatement and the city has appealed.
The principal discussion in the briefs and on oral argument, in addition to the amount of the verdict, was as to whether the city and Leven could be jointly sued, and whether, under the pleadings alleging a joint liability, recovery could be had against the city alone. However the rule may have been prior to the Act of June 29, 1923, P. L. 981, since its passage such recovery may be had: Moraski v. P. R. T. Co.,
In our view the question of controlling consequence in the case, so far as the city is concerned, is whether, under the facts as they were shown, it can be held liable at all. The briefs on neither side adequately present this question. We have been compelled to make our own investigation of it.
Leven was driving his automobile east on Sansom Street toward 13th Street at about 9 o'clock in the morning of a clear day. It had been his custom to thus drive every morning except Sunday for a considerable period of time. A barrier had been erected on the north side of Sansom Street to guard an excavation made by public utility companies. Leven knew of this barrier and that he could not proceed on the north side of the street and he therefore drove on the south side, which was his proper, right-hand side. He saw the plaintiff standing on that side of the highway engaged in removing ice from an ice wagon on which he was employed. He, Leven, knew that the particular hole in question was in *344 the street, close to where plaintiff was standing and that the street was slippery, having been recently sprinkled. He testified categorically that he knew the condition of the street and that the hole was in it. Notwithstanding this knowledge, he drove into the depression, lost control of his car, slid some distance, he says eight feet, after he put his brakes on, violently struck the plaintiff and inflicted injuries so serious as to require the amputation of his leg. In entering the nonsuit as to Leven, the trial judge said it was done because no negligence had been shown on his part. In our view, he was the one primarily negligent. He saw the plaintiff standing in the rear of the ice wagon, taking out a piece of ice, he knew the defective and slippery condition of the street but drove on and into the plaintiff. We are unable to understand how it could be concluded that he was acting with due care under the circumstances. It was manifest error to enter a nonsuit as to him.
Under the circumstances, can the city be held liable for the result which flowed from Leven's incautious act, because it permitted the hole to be in the street? We are of opinion that under the legal principle which governs such situations as that before us, it cannot be. That principle would seem to be best and most simply stated in Wharton's Law of Negligence, page 130, section 134, where the learned author says: "Supposing that if it had not been for the intervention of a responsible third party the defendant's negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative, for the general reason that causal connection between negligence and damages is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter. Another person, moving independently, comes in, and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a nonconductor, and insulates my *345
negligence, so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. I may be liable to him for my negligence in getting him into difficulty, but I am not liable to others for the negligence which he alone was the cause of making operative." The principle was recognized in Thubron v. Dravo Contracting Co.,
If Leven had not known of the hole and unwittingly had driven into it, there might arise a different legal *346 liability situation, but he knew of it, and directly produced the injuries to plaintiff by his lack of care in not avoiding it. The defect in the street was passive so far as plaintiff was concerned. Without the independent act of Leven no harm would have come to him from it.
The principle with which we are dealing is well expressed in a note to Corpus Juris, as follows: "If a party do an act, which might naturally produce an injury to another as its consequence, but, before any such injury results, a third person does some act or omits to perform some act, which it was his duty to perform, and this act or omission of such third person is the immediate cause of an injury, which would not have occurred but for his negligence, such third person is responsible for such injury and not the party guilty of the first negligence; for the causal connection between the first act of negligence and the injury is broken by the interposition of the act or omission of the third party. And this act or omission of the third party is in law regarded as the cause of the injury, and the act of the first party is in law regarded as a mere condition, according to the maxim: 'In jure non remota causa sed proxima spectatur' ": 45 C. J. 931, 932, note 55, quoting from Washington v. Baltimore, etc., R. R. Co.,
The case of Henry v. City of Phila.,
It is urged upon us by appellee that under Cleary v. Quaker City Cab Co.,
The judgment is reversed and is here entered in favor of the defendant, the City of Philadelphia. Leave is granted to plaintiff to move the court below to take off the nonsuit entered as to Max R. Leven.