Appeal, No. 215, March T., 1952, from decree of Court of Common Pleas of Westmoreland County, Aug. T., 1950, No. 622, in case of Nick J. Lacaria, Admr., Estate of Pasquale Lacaria, deceased, etc., v. Clyde W. Hetzel. Decree reversed.
Harry Alan Sherman, with him David Weiss, for appellant.
Robert W. Smith, with him Smith, Best & Horn, for appellee.
Before Stern, C.j., Stearne, Jones, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
As the ground of decision in this case we quote once more the statement of the late Chief Justice MAXEY in Caulton v. Eyre & Co. Inc., 330 Pa. 385, 388, 389, 199 A. 136, 138, as follows: "Backing a motor vehicle any distance unless the driver is absolutely certain there is no person in his pathway involves a risk, as countless accidents on sidewalks and elsewhere resulting from that practice attest.... the truck should have proceeded down the alley with more caution, and particularly its horn should have been sounded. The simplest, elementary caution should have dictated that. A man who backs a motor vehicle any distance when he cannot see what is behind him and has no one present to tell him what is behind him, is, figuratively speaking, taking a 'leap in the dark,' and to take such a leap... is to invite injury of one's self or of others..."
To this sage observation we added, in Potter Title and Trust Co. v. Young, 367 Pa. 239, 245, 246, 80 A.2d 76, 80, that "The backing of a vehicle necessarily entails more or less limitation of view by the driver over the road to be traversed, and thus demands a corresponding increase of vigilance on his part to avoid causing injury to persons likely to be in his path."
The decedent, Pasquale Lacaria, was employed as a laborer by the Johnson Construction Company, which was engaged in paving a two-lane state highway extending some nine miles north from Greensburg in Westmoreland County. By August 9, 1949, the work had progressed to a point where the concrete had been laid in the west lane, and the east lane was being graded preparatory to the concrete being poured upon it, for which purpose a mixer was situated on the roadway about 4 or 5 miles up from Greensburg. Defendant, Clyde W. Hetzel, was a sub-contractor owning and operating a dual-wheel dump truck and engaged in hauling to the mixer a material known as "batch." He would obtain it some 4 or 5 miles to the north and carry it down the paved portion of the highway to a point within about 800 or 900 feet of the mixer; there a flagman would direct him to turn the truck around and run it backward the remaining distance to the mixer, into which he would then dump its load. Defendant had been operating his truck in this manner for three days prior to the accident which gave rise to the present suit. His practice was to stand with his left foot on the running board, his right foot in the cab, and his right hand on the steering wheel; as his truck proceeded in reverse at a rate of about two miles an hour he would lean out and look along the left side of the truck. He admitted that in this position he could not see to the right of the truck at all and was "almost totally blind" to what was happening on that side. As
he was proceeding backward on the occasion in question and was some 250 to 500 feet north of the mixer he felt a slight bump at the rear of the truck; he jumped immediately into the cab in order to bring the truck to a halt, whereupon he felt a second bump and stopped the truck immediately. On looking out he saw the decedent, Pasquale Lacaria, lying in front of the truck. Evidently both the rear and the front wheels had gone over him. Defendant sprang out, ran up to him, and saw that he was dead. Upon subsequent examination it was found that both his legs and his skull were fractured, his chest and clavicle were crushed, his jugular veins were severed, he had internal injuries, and his face was "out of shape" and bloody. The truck, when loaded, had an overall weight of about 9 tons.
The present action was instituted by decedent's son, Nick J. Lacaria, as administrator of his estate, and on behalf of himself and a daughter of decedent. After the conclusion of the testimony offered by plaintiff the trial judge entered a non-suit which the court en banc subsequently refused to remove. It was entered on the theory that plaintiff had not described or visualized what actually happened in sufficient detail to enable the fact-finding tribunal to conclude that defendant was guilty of actionable negligence. In its opinion the court stated that no witness to the accident was called other than defendant himself, that no one had seen decedent alive for several hours before the accident, that it was not shown that it was the truck operated by defendant which struck ...