Appeal from judgment of Court of Common Pleas of Montgomery County, No. 63-7761, in case of David Cotter, a minor, by Richard Cotter and Jacqueline Cotter, his guardians, and Richard Cotter and Jacqueline Cotter, in their own right, v. David Bell, Doris Bell, his wife, Stephen V. Froio, a minor, et al.
Raymond M. Seidel, with him High, Swartz, Roberts & Seidel, for appellants.
Philip D. Weiss, with him Duffy, McTighe & McElhone, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen and O'Brien, JJ. Opinion by Mr. Justice Eagen. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen.
In this personal injury action, the court below entered judgment on the pleadings in favor of the additional defendant, Doyle. The original defendants appeal.
The minor plaintiff was injured while riding his bicycle on a public street, when it was hit by an automobile, allegedly operated in a careless manner by one of the original defendants and owned by the other. In the complaint against the additional defendant,
Doyle, it is alleged that he was the owner of premises on the corner of the intersection at or near where the accidental collision occurred; that a hedge, growing along the perimeter of the property and adjacent to the street, was permitted to remain in such an unkept and careless condition that it caused a visual obstruction to traffic on the highway; and that this contributed to the happening of the accident sued upon.
In order that the additional defendant be held responsible for the accident involved, it must be established that he was guilty of negligence, which was a proximate cause of the accident and injury complained of: Listino v. Union Paving Co., 386 Pa. 32, 124 A.2d 83 (1956), and Helm v. South Penn Oil Co., 382 Pa. 437, 114 A.2d 909 (1955). Assuming arguendo, that the additional defendant was guilty of negligence, even per se, such negligence would not render him liable unless the negligence was the proximate and efficient cause of the accident: DeLuca v. Manchester Laundry & Dry Cleaning Co., Inc., 380 Pa. 484, 112 A.2d 372 (1955). Further, an act of negligence which merely creates a passive background or circumstance of an accident is not the proximate cause thereof, where the accident is, in fact, caused by an intervening act of negligence which is a superseding cause: Kite v. Jones, 389 Pa. 339, 132 A.2d 683 (1957); DeLuca v. Manchester Laundry & Dry Cleaning Co., Inc., supra; and, Ashworth v. Hannum, 347 Pa. 393, 32 A.2d 407 (1943).
Under the facts pleaded, it is undeniably clear that the hedge in question was merely a passive background or circumstance of the accident involved. The carelessness of the automobile driver was an intervening, and hence the proximate and efficient, cause of the accident. The case of Kite v. Jones, supra, is almost identical factually, and is controlling.
While, ordinarily, the question of proximate cause is a question for the jury, where ...