Appeal from order of Court of Common Pleas of Luzerne County, Oct. T., 1961, No. 1242, in case of Angeline Sciandra, administratrix of estate of Anthony Sciandra, deceased, v. Francis Shovlin and Myrle J. Swingle.
Patrick J. Toole, Jr., with him James P. Harris, Jr., for appellant.
J. Earl Langan, with him Guy J. DePasquale, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Mr. Chief Justice Bell, Mr. Justice Cohen, Mr. Justice Eagen and Mr. Justice Roberts concur in the result.
At about 9 p.m., January 7, 1961, Anthony Sciandra, age 32, started on foot to cross South Main Street in Pittston, walking from the west to the east side, when an automobile driven by Francis Shovlin, headed southwardly, struck him, hurling his body several feet into the air. As it descended, it was struck again by an automobile driven by Myrle J. Swingle which was proceeding northwardly. Sciandra died three hours later.
His widow, as administratrix of his estate, brought suit against both Shovlin and Swingle, averring concurrent negligence. At the trial, the judge charged the jury: "As I proceed through my charge, bear in mind that the plaintiff is seeking recovery on the theory of concurrent negligence of both defendants, which means that you will find for the plaintiff against both defendants, or you will find for both defendants against the plaintiff. Your verdict in this matter cannot be for the plaintiff against either of the defendants. In other words, it is a matter of proceeding on the concurrent or joint negligence of both defendants."
The jury returned a verdict in favor of both defendants and, upon proper motion, the court ordered a new trial stating it had committed fundamental error in charging the jury that it was not permissible to return a verdict against either defendant, individually.
The defendant Swingle appealed, contending that the court's charge was proper because the facts would not support a verdict against either defendant alone. The record reveals evidence as to the force of the impacts caused by the Shovlin and the Swingle cars. Damage done to the individual cars sheds further light on the manner in which Sciandra was struck and the injuries he probably sustained because of the separate collisions. Thus, there were facts from which the jury could make a reasonable determination that if both defendants
were not concurrently negligent, one of them, individually, may have caused Sciandra's death.
In Coyne v. Pittsburgh Railways Co., 393 Pa. 326, 336, this Court said: "Equally and relevant is this Court's pronouncement in the case of Burrell Twp. v. Uncapher, 117 Pa. 353, 363, where we said: 'If the defendant's negligence concurred with some other event (other than the plaintiff's fault) to produce the plaintiff's injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time."
In the case at bar, the jury could find under the evidence and the applicable law that the first driver was liable not only for the injuries then inflicted but also for the death that followed. On the other hand, the jury could as fairly conclude that, under the evidence, the driver of the first car was not negligent but the second driver was. It could also find from a comparison of the effects of the two impacts upon the decedent's body and the corresponding vehicles that the first impact would not have been sufficient to cause the decedent's death but that the second impact did accomplish that result. In that event, the fact that the original injuries inflicted by the first impact may have contributed to the death would not insulate the driver of the second car from liability since a tortfeasor is ...