Appeal, No. 185, March T., 1951, from judgment of Court of Common Pleas of Butler County, Dec. T., 1949, No. 49, in case of John C. Sankey, Admr., Estate of Paul Lee Sankey, deceased, v. James Russell Young. Judgment affirmed.
Lee C. McCandless, with him Roger B. Johnson, for appellant.
John L. Wilson, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
The accident giving rise to this suit in trespass occurred during the reconstruction of Route 422 in Butler County when Paul Lee Sankey, an employe of the construction company was struck and killed by a truck owned and operated by James Russell Young. John C. Sankey, administrator of Paul Sankey's estate, brought this action against Young under the Wrongful Death Act and the Survival Act. At the trial the jury returned a verdict that both defendant and Sankey were guilty of negligence. A motion for new trial was dismissed and judgment was entered for defendant.
The new road known as State Highway Route 422 was to be a three-lane concrete highway. On July 6, 1949, the date of the accident, one outside lane had been completed and the center lane was being laid. To facilitate this process a "batch plant" was set up some distance from the place of operation and there the dry concrete was made according to formula. Some ten to twenty trucks, among them defendant's, were employed to haul the dry concrete from the batch plant to the mixer where it was mixed and poured onto the road bed. To assure constant production the dry concrete had to be delivered to the mixer at a rate of one truck load every minute and a half. The mixer was set up in the third lane which had been rough graded but not finished. The trucks would drive up that lane, turn around and back up to the mixer. Because of the necessity for rapid delivery several trucks were usually in line awaiting their turn to deliver to the mixer.
On the morning of the accident a spreader had broken down and was pushed to a point in the center lane about seventy-five feet in front of the construction work. A projection on the spreader extended twenty-six inches into the lane used by the trucks and on that projection was placed a can of water. At about 10:30 A.M., Sankey and several other workmen had gone to the water can for a drink. At that time, defendant's truck was stopped with its motor running fifteen to twenty feet beyond the water can and in a position to back past it in going toward the mixer. Sankey stood to the rear of defendant's truck and looking away from it. Someone called out that a truck was overturning near the mixer. Sankey took two steps toward the mixer when he was struck by defendant's truck which had at the same time begun backing up. The injuries caused by the accident resulted in Sankey's death a few minutes later.
On these facts defendant's negligence is not and could not be questioned. The jury properly found that in backing his truck without giving warning or ascertaining that no one was behind him, he failed to exercise reasonable care: Potter Title and Trust Co. v. Young, 367 Pa. 239, 80 A.2d 76; Caulton v. Eyre & Co., Inc., 330 Pa. 385, 119 A. 136. It is plaintiff's contention, however, that defendant was guilty of wanton misconduct and the trial judge erred in failing to instruct the jury on that subject. To accept such an argument would be to ignore the basic and fundamental distinction between negligence and wantonness.
"Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong.": Kasanovich
for the center lane as a precautionary measure.Under those circumstances the jury was fully justified in finding Sankey guilty of contributory negligence. This is true even though a truck overturned near the mixer. The trial judge instructed the jury that they were to find that facts by careful consideration of all of the evidence and from those facts determine whether Sankey exercised reasonable care under the circumstances. With those instructions in mind it is obvious that the jury believed that the overturning truck was not an occurrence of such a nature that a reasonably prudent man would have been diverted to such an extent that he would have disregarded his safety.
Under all the evidence we are convinced that the jury reached a proper verdict on a record that is free from harmful error. Accordingly judgment was correctly entered on that verdict.
ING OPINION BY MR. JUSTICE MUSMANNO
Paul Lee Sankey at the age of 25 years was a graduate of Grove City College, a war veteran, and a law student at the Dickinson's School of Law. Apparently a youth of ambition and energy, he worked at various jobs during evening hours and vacation time while attending high school and college. Of a saving disposition, and seeking to lessen the financial burden of his parents, he obtained employment in the summer of 1949 on a state road construction job to help pay for his tuition at law school.
Standing 6 feet 3 inches and weighing 190 pounds, he was well equipped physically for his labors on the construction job which consisted of setting up, adjusting and levelling the steel forms or frames into which was poured the wet concrete in the paving of the highway to be known as State Route No. 422.
The plans for the road construction envisaged high speed production, the laying of the concrete for 11 feet wide slabs proceeding at the rate of 275 to 300 feet per hour. An eight hour day's work was to accomplish the paving of 2250 feet of such slabs, practically a mile. A fleet of some twenty trucks carried the dry concrete ingredients known as "batches" to the concrete mixer or paver, the paver mixed the batch with water, a boom carried the wet mix to the steel frames, a spreading machine known as a "spreader," tamped and spread the compound evenly and then a finishing machine completed the operation.
On the day of the incidents here under discussion the road building had reached a point in Muddy Creek Township, Butler County, moving from east to west with its destination a place called Dixie Inn. Some 90 men were working on the enterprise.
The trucks transporting the batches from the batch plant moved to a point about 100 feet west of the mixerpaver and then backed eastwardly to the machine. As each truck unburdened its batch in to the mixing machine and drove away, another truck backed up, discharged its load and returned to the plant for a fresh supply of batch. The unloading process into the paver was accomplished in 17 to 21 seconds. Every 1 1/2 or 2 minutes a new truck, in reverse position, had moved up to the paving machine. Every hour 70 batches were emptied into the paver.
On July 6, 1949, when Paul Sankey had been on the job about five weeks, a spreader, temporarily disabled, was elevated to one of the forms, and, atop this improvised platform, a five gallon can of drinking water was installed. This watering place, as is true all over the world and in every type of vocation and occupation, became a spot where men gathered if only for the few moments absorbed in waiting for one's turn, drawing the water and swallowing it. The water was
contained in a garbage can (presumably one never used for garbage) with a spigot attached, so that satisfying one's thirst was not merely a matter of an unlingering instant. This gregarious rendezvous at the drinking spot was a fact known to all those engaged on the construction job at that point.
The morning of July 6th began as a very hot day so that interest in the galvanized oasis amid this desert of concrete mounted with the rising temperature. At about 10:30 in the forenoon some seven or eight men were in the immediate vicinity of the water can and four were actually waiting to quench their thirst. About 20 feet away from the drinking place a truck was halted, in position to back to the mixer about 100 feet away. The men were standing between the watering place and the mixer. Paul Sankey had handed to one of his fellow-workmen a package of tobacco and had moved forward to draw himself a draught of water. While still holding the cup in his hand, the truck, without signal of any kind and without warning from the driver, suddenly started backwards, heading for the paver and for the men in its path. The frightened workers scurried to escape. Two were able to avoid the trajectory of the vehicle, but two were struck. The truck, with its batches of concrete, weighed about 12,000 pounds:
Witness William J. Bowser described what happened: "Q. What part of Mr. Young's truck touched you? A. His back end gate hit me on the shoulder. Q. And what side of the end gate with relation to the left or right rear was it? A. The right rear. Q. His right rear? A. Yes. Q. Then I understand you pushed O'Neil and pushed him over toward the forms from the path in which the trucks were backing? A. When I stopped to push Irish out of the way the truck caught up to me and hit me on the shoulder and I ...