Appeal, No. 148, March T., 1962, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1957, No. 3263, in case of Emil J. Zilka v. Sanctis Construction, Inc. Judgment reversed; reargument refused January 21, 1963.
James J. Burns, Jr., with him Robert C. Little, and Burns & Manley, for appellant.
Edward O. Spotts, with him James P. Gill, and Charles S. Morrow, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen and Eagen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
This is an appeal from a judgment of the Court of Common Pleas of Allegheny County entered upon a $30,000 verdict in a trespass action in favor of Emil J. Zilka (Zilka) and against Sanctis Construction, Inc. (Sanctis).
In the summer of 1956 Zilka resided along a county highway, known as Bailey's Run Road, which runs between Creighton and Russelton, Allegheny County. At that time Allegheny County was engaged in a reconstruction of that highway, the work of reconstruction being performed by Sanctis under the direction of the County. None of Zilka's property was taken for the highway purposes but Sanctis had secured from Zilka, in the form of a general written release, permission to enter upon Zilka's property for the purpose of grading, filling and levelling the surface of the highway.
In early September 1956 the highway construction reached the point at which Zilka's property fronted upon the highway. On September 6th, Sanctis, with Zilka's acquiescence, pushed over two trees on Zilka's land with a bulldozer and rolled the trees into a ravine or gully which lay between the highway and Zilka's home. Toward the end of that day two men representing Sanctis informed Zilka that, before any more fill could be placed in front of his property, the branches on the two fallen trees would have to be trimmed and, inasmuch as Sanctis had no available man to perform this work, Zilka would have to trim the branches. On September 7th, Zilka, using a brush axe,*fn1 trimmed the branches
from these trees, completing such work prior to the time Sanctis commenced its operations.
Planning a trip to Creighton with his wife to collect his pay check and do some shopping, Zilka then entered his home, changed his clothes, and, while waiting for his wife to get ready, took a position on his property where he could watch the work being performed by Sanctis. In particular, Zilka watched Sanctis' bulldozer - 30 to 35 feet distant from where Zilka stood - being operated by Sanctis' employee Turner known to Zilka as "Sonny". Zilka testified that he had waved at Turner and Turner had waved back at him. Under the testimony of Zilka - the only eyewitness - the bulldozer, operating in the gully or ravine, was making "passes" and spinning around and, in the course of so doing, hit a group of trees lying in the gully or ravine and a tree or part thereof flew up and hit him. Zilka sustained, as the result of this blow, numerous lacerations and injuries, including the loss of vision in his left eye.
On this appeal Sanctis seeks either (a) a judgment n.o.v. on the grounds that Zilka failed to establish negligence and that Zilka was contributorily negligent as a matter of law or (b) a new trial on the grounds that the trial court erred in certain portions of its charge to the jury and in the admission into evidence of certain mortality tables.
In passing upon the motion for judgment n.o.v. certain well settled principles of law must guide us: (1) the mere happening of an accident is not evidence of negligence (Bohner v. Eastern Express, Inc., 405 Pa. 463, 175 A.2d 864; DiGiannantonio v. Pittsburgh Railways Co., 402 Pa. 27, 166 A.2d 28); (2) the burden is upon the plaintiff to produce evidence from which a reasonable inference arises that the defendant was negligent and that such negligence was the proximate cause of the accident (Ucci v. Keane, 402 Pa. 467, 167
A.2d 147; Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70); (3) the evidence, and all reasonable inferences therefrom, must be viewed in the light most favorable to the verdict winner (Ucci v. Keane, supra); (4) while foreseeability is not an element to be considered in determining whether negligent conduct was the proximate cause of an accident, it is an element to be considered in determining the existence of negligent conduct (Helm v. South Penn Oil Co., 382 Pa. 437, 114 A.2d 909; Churbuck v. Union Railroad Co., 380 Pa. 181, 185, 110 A.2d 210; Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289; Rockey v. Ernest, 367 Pa. 538, 80 A.2d 783; Hankins v. Mack, 364 Pa. 417, 72 A. 268; Shipley v. Pittsburgh, 321 Pa. 494, 184 A.2d 671; Restatement, Torts, § 281 comment c and revised § 435 (1948 Supplement).
Zilka related the manner in which the accident occurred: "Q. Okay, at the time that he was running his bulldozer back and forth, up and down this road, moving the dirt around, were there any trees in this - A. (Interposing) Yes, Sir. Q. (Continuing) - in this gully? A. Yes, there were a considerable number of trees that had been cut from about a month previously; some of them had been cut earlier, some of them were knocked down even a day or so prior to this and there was a lot of trees strewn all through that gully. Some of them were cut and some of them were knocked out with roots and all, they were laying down in through that gully all the way. Q. Okay. How close were these trees that were laying on the ground or in this ravine, how close were those trees in reference to where Sonny was running this bulldozer? A. Well, you mean where he was making his passes up and down? Q. Yes. A. Well, I say that some of the trunks of the trees probably were within a couple of foot of the fill that he was putting in. Q. All right, and how far were you standing, by the way, from where the bulldozer was operating if
you know, in a direct line distance, if you know? A. Oh, I would say about thirty or thirty-five feet. Q. All right. Now, did an accident happen to you that morning? A. Yes. Q. What happened to you? A. Well, as I was standing there on that side of the gully where my house is, about six foot down, the bulldozer was working across from me on the other side, as he was making these passes around, whipping the bulldozer around, as they do, you know, they can spin those things around on a dime, he spun it around and hit these trees and as the trees rolled over, one tree came up at me. I never, didn't have a chance to duck out of the way or anything, I just got hit. Q. Do you know what hit the tree, Mr. Zilka? A. The bulldozer hit the tree, the blade of the bulldozer hit the trees. Q. And the tree then struck you? A. That is right. Q. And do you know anything more after that? A. That is all I remember until - I think it was Sunday when I woke up in the hospital, ...." (Emphasis supplied) ... Q. And the truth of the matter, Mr. Zilka, as you said that first time you were asked, is that you really don't know what tree it was that hit you or where it came from? A. Not the specific tree, no, but it was out of this bunch that he hit with the blade, come up at me, it was one that hit me. I can't point out the tree and say, 'This is the one, this big around.' And, of course, I would say, well, one of the trees it was a tree that hit me that come up out of that pile as he hit it, as he spun over the trees rolled and these trees come at me before I had a chance to even figure I was getting hit or what. That's it, I didn't remember anything any more, I don't recall anything, as I said until Sunday after that." (Emphasis supplied).
The crux of our inquiry is whether, under Zilka's testimony and the surrounding circumstances, negligence on the part of the operator of the bulldozer has been established. Viewed most favorably in Zilka's
favor, the record indicates that the bulldozer was in the gully or ravine where it had the right to be, that it was engaged in an operation not inherently dangerous or hazardous, that it was making "passes", "whipping ... around" and "spinning", all of which are normal, usual, and standard practice in bulldozer operations and that the bulldozer blade hit a tree, a fact neither unusual or extraordinary. The record further indicates that, when the bulldozer hit a tree, some tree or some part thereof - undescribed as to size, location on the ground or distance from Zilka - struck Zilka then standing 30 to 35 feet from the point at which the bulldozer was in operation.
In Rockey v. Ernest, 367 Pa. 538, 541, 80 A.2d 783, we stated: "While negligence need not be proved by direct evidence but may be inferred from circumstantial evidence, i.e., facts and circumstances from which defendant's negligence may be legitimately inferred, nevertheless it is still necessary even in this class of case that the injured person prove that the defendant was negligent and that his negligence was the proximate cause of the accident [citing cases]." In our view, the instant record fails to prove that the bulldozer was operated in an improper, unusual or negligent manner or that there was a likelihood of any harm resulting from the operation of such bulldozer to a person standing, as was Zilka, a considerable distance from the point at which the bulldozer was in operation. We cannot infer from the fact that a tree or a part thereof struck Zilka that the operation of the bulldozer was negligently performed particularly when, under Zilka's own testimony, there is not a scintilla of evidence of negligence in the operation of the bulldozer. It was incumbent on Zilka to prove that the blow struck him by a tree, or a part thereof, arose from an improper or careless operation of the bulldozer and that he was within the "orbit of danger" arising from
the operation of the bulldozer; on both counts, Zilka failed to sustain his burden of proof.
The instant factual situation is not without precedent. In White v. Roydhouse, 211 Pa. 13, 60 A. 316, a workman of the defendant was engaged in mixing mortar when he came across a lump of unslacked lime which it was necessary to crush; he raised a hoe which he was using and struck the lump with sufficient force to crush it and, in so doing, a particle of the lime flew 15 feet and struck the plaintiff. In entering judgment in favor of the defendant, this Court said (p. 16): "Where was the negligence? The result was not a probable consequence of [the employee's] act in mixing the mortar with the hoe; the most that could be said of it is, that the consequence was very remotely possible, so remotely, that it is one which in the ordinary affairs of life the most careful men do not anticipate and make provision against." In Rockey v. Ernest, supra, decedent was laying a pipe 20 to 25 feet distant from a point where a bulldozer was in operation when the bulldozer struck a stone which snapped from under the bulldozer, flew a distance of 20 to 25 feet and struck decedent in the head. This Court stated (pp. 541, 542): "There was no evidence that defendant operated the bulldozer negligently or in an ...