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November 12, 1956


Appeal, No. 186, March T., 1956, from order and judgment of Court of Common Pleas of Beaver County at No. 20, March T., 1953, in case of Angelo DeFonde, administrator of Estate of Charles DeFonde, deceased v. Keystone Valley Coal Co. et al. Order and judgment affirmed. Trespass for wrongful death. Before MCCREARY, P.J. Compulsory non-suit entered as to all defendants; plaintiff's motion to take off non-suit refused and judgment entered for defendants. Plaintiff appealed.


Francis A. Muracca, with him James B. Ceris and John J. Hudacsek, Jr., for appellant.

John D. Ray, with him Reed, Ewing & Ray, for appellees.

Before Stern, C.j., Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Stern

[ 386 Pa. Page 434]


This case presents no problem as far as the applicable law is concerned. Where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover: Haven v. Pittsburgh & Allegheny Bridge Co., 151 Pa. 620, 25 A. 311; Levitt v. B/G Sandwich Shops, Inc., 294 Pa. 291, 144 A. 71; Kaczynski v. Pittsburgh, 309 Pa. 211, 163 A. 513; Tharp v. Pennsylvania Railroad Co., 332 Pa. 233, 2 A.2d 695. Here the question is whether the evidence so clearly establishes that the way chosen by decedent was an obviously dangerous one that the court below was justified in declaring him guilty of contributory negligence as a matter of law.

The decedent, Charles DeFonde, a minor, was, and for several months had been, engaged in hauling coal by truck from the strip-mine operations conducted by

[ 386 Pa. Page 435]

    the defendant, Keystone Valley Coal Company. He worked under a contract which his brother, Guy DeFonde, had with the defendant company. In the early afternoon of December 10, 1951, he came with his truck to the site of the mine. The coal pit was approximately 30 feet in width; it extended from south to north, its rear or northerly end containing some 500 feet of coal yet to be stripped. Standing in the pit at that distance from the northerly ens and facing the unstripped portion was a Lima #34 shovel, behind which to the south, back to back, at an approximate distance of 3 or 4 feet, was a D-7 Caterpillar bulldozer. Both of these pieces of equipment were stationary while the bulldozer was engaged in pumping oil into the tank of the shovel through a connecting hose. While this fueling operation was going on decedent arrived and parked his truck on the east side of the pit some distance to the south of the bulldozer. Then he and a companion, one Schilling, who had been riding with him on the truck, alighted therefrom and walked over to a drum in which a fire had been built and which was located on the west side of the pit also at some distance south of the bulldozer. Among others there assembled and awaiting the completion of the fueling were the defendant Grant R. Wright who operated the shovel and the defendant John Hartzell who operated the bulldozer. After warming their hands at the fire and the fueling operation having ceased, they all started to return to their respective jobs, Wright to operate the shovel, Hartzell to operate the bulldozer, and decedent to place his truck in position to receive its load of coal. Decedent and Wright walked over together toward the shovel. Wright took his seat in the cab of the shovel while decedent, joined by Schilling and Albert Hartzell who was the father of the defendant

[ 386 Pa. Page 436]

John Hartzell, stood aside of the shovel and at a distance of about six feet therefrom, engaged in conversation. Meanwhile John Hartzell started to climb on to the bulldozer. Suddenly decedent, leaving his companions, and before they could stop him, darted forward between the rear of the shovel and the bulldozer and was there caught and crushed between the two vehicles due to the recoil of the shovel over the three or four foot gap which separated it from the bulldozer. He was picked up on the east side of the pit and given first aid but subsequently died of his injuries. The present action was brought by the administrator of his estate against Keystone Valley Coal Company, John Hartzell and Wright. It was non-suited by the court below and plaintiff appeals.

It is clear that decedent, in going from the fire barrel to his truck, as, according to plaintiff's complaint, he was intending to do, had a perfectly safe way of proceeding, namely, across the pit but to the south of the front of the bulldozer. Instead of so proceeding, having walked over to a point opposite the gap between the two standing vehicles, he chose, without any need whatever so to do, to "duck" in between them in order to go to the east side of the pit, whence he would presumably have walked southward again to where he had parked his truck. It is of interest to note that when he fell Schilling and Albert Hartzell hurried over to him, not through the passageway between the two vehicles, but by going in front, or to the south of, the bulldozer. The evidence is clear that in the operation of such a shovel as that here engaged it is ...

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