Appeal, No. 189, Jan. T., 1956, from judgment of Court of Common Pleas No. 3 of Philadelphia County, Sept. T., 1953, No. 7985, in case of Aleardo Listino, et ux. v. Union Paving Company. Judgment reversed; reargument refused August 1, 1956.
Ralph S. Croskey, with him Croskey & Edwards, for appellant.
J. Grant McCabe, III, with him Henry T. Reath, John B. Martin, and Duane, Morris & Heckscher, for appellees.
Before Stern, C.j., Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
Was defendant's negligence the proximate cause of the accident, or did the acts of plaintiff's husband break the casual connection and become the superseding cause of the accident?
Considering the evidence in the light most favorable to plaintiffs, as we must on a motion for judgment non obstante veredicto, these are the facts:
Clara Listino was a passenger in the car driven by her husband proceeding south on Sproul Road - a wide concrete two lane highway - at about 30 to 35 miles an hour, an the evening of November 21, 1952. The night was dark and rainy with no street lights where the accident occurred. Defendant was repairing the Sproul Road, and at a point 300 feet from the accident the travelable concrete portion of Sproul Road narrowed abruptly on plaintiff's side of the highway. There were no signs, flares, barricades or other warnings to indicate this abrupt reduction in width. Plaintiff, Aleardo Listino, knew that the Sproul Road was being repaired and before the accident had on two occasions driven past other portions which were being reconstructed. Listino drove his car off the concrete highway on to that portion of the highway which was being repaired. He felt the right wheels of his car hit mud ruts. He estimated that his car traveled in the mud about 30 feet before he was able to swerve it back on to the paved concrete portion of the highway. Approximately 270 feet from where plaintiff got back on to the concrete portion of Sproul Road, he crossed the road and was struck on the opposite side of the road sidewise, i.e. in a right angle collision, by oncoming traffic. At no time did he put on his brakes, nor did
he know whether his car skidded after he got it back onto the concrete portion of the highway. His best testimony was that he was fighting the wheel; he saw three cars coming the opposite way, then he blacked out. Clara Listino did not remember anything about the accident.
Plaintiffs produced Officer Ruthers who investigated the accident as a result of a telephone call. He testified as follows:
"There was a Studebaker sedan [plaintiff's car] crosswise in the northbound lane of traffic.*fn* We were heading south on Sproul Road, Pennsylvania Route 320. It set in a position approximately 100 yards south of where the new part of Sproul Road had been widened, where that point ended, and a point midway in the intersection of Springfield and Sproul Road. It had been struck by a car proceeding northbound on Sproul Road, a Chevrolet sedan ... some of the mud and debris that was dragged by Mr. Listino's car from the southbound lane of the highway across in an arc to the northbound lane of the highway at the point of impact."
Immediately after the accident the officer took measurements and made a sketch of Sproul Road.
Briefly summarizing the situation, Listino was driving south on Sproul Road; when the road narrowed he ran off the paved portion; his right wheels ran along muddy ruts; he regained the concrete portion of the Sproul Road after running in the ruts for 30 feet; he then drove 270 feet in his right lane; then for reasons unknown or undisclosed he crossed over into the left northbound lane and was struck in a right angle collision by traffic in that lane.
It is hornbook law that plaintiff has the burden of proving that defendant's negligence was the proximate cause of the accident: DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa. 484, 112 A.2d 372; Helm v. South Penn Oil Co., 382 Pa., 437, 114 A.2d 909; Lanni v. Pa. R.R. Co., 371 Pa. 106, 88 A.2d 887; Brusis v. Henkels, 376 Pa. 226, 102 A.2d 146. His evidence failed to sustain this burden. There was no affirmative evidence and no evidence from which it could reasonably be inferred that Listino's driving for 30 feet in soft mud ruts 300 feet from the accident, caused him 270 feet later to pull over at that point crosswise in front of oncoming traffic in the other lane.
The law on the subject of intervening acts and superseding cause is difficult to formulate because so many varied situations can and do arise, and for these reasons it has not always been uniformly expressed.*fn**
The question boils down to whether the chain of causation was broken and superseded by an intervening act.
Perhaps the best expression of the principle in question is found in DeLuca v. Manchester Laundry and Dry Cleaning Company, Inc., 380 Pa., supra. In that case a judgment non obstante veredicto was entered by this Court upon the ground that an intervening act of negligence was the superseding cause of the accident. Chief justice STERN said (pages 488-492):
"... assuming, arguendo, that the Laundry Company was guilty of a violation of the provisions of the statute and therefore negligent per se, such negligence was not a ground of liability unless it was the proximate and efficient cause of the accident in question: Hayes v. Schomaker, 302 Pa. 72, 77, 152 A. 827, 829; Hutchinson v. Follmer Trucking Company, 333 Pa. 424, 427, 5 A.2d 182, 183; Shakley v. Lee, 368 Pa. 476, 478, 84 A.2d 322, 323; Purol, Inc. v. Great Eastern System, Inc., 130 Pa. Superior Ct. 341, 344, 345, 197 A. 543, 544, 545; Vunak v. Walters, 157 Pa. Superior Ct. 660, 662, 43 A.2d 536, 537. This is because an act of negligence which creates merely a passive background or circumstance of an accident does not give rise to a right of recovery if the accident was in fact caused by an intervening act of negligence which is a superseding cause: Stone v. Philadelphia, 302 Pa. 340, 153 A. ...