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MILLER v. DUNCAN (01/17/66)

decided: January 17, 1966.

MILLER
v.
DUNCAN, APPELLANT



Appeal from order of Court of Common Pleas of Westmoreland County, July T., 1962, No. 158, in case of Donald M. Miller and Augusta Miller v. Conrad Duncan and Dora Hough, administratrix of estate of Raymond C. Hough, deceased.

COUNSEL

B. Patrick Costello, with him John M. O'Connell, Jr., and Smith, Best and Horn, for appellant.

Louis J. Kober, with him Charles Skomski, for appellees.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Chief Justice Bell. Mr. Justice Cohen and Mr. Justice Roberts concur in the result. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Eagen.

Author: Bell

[ 420 Pa. Page 250]

Duncan, the appellant and original defendant, was pushing with his own car the stalled*fn* automobile of Hough (his father-in-law). He pushed Hough's car with Hough at its wheel, slowly about 125 feet to the top of a slight grade in order to enable Hough to start it -- pushing a stalled car is frequently done by well-intentioned motorists. At the top of the incline, Duncan stopped pushing Hough's car, whereupon Hough drove his car with the aid of gravity -- his engine was still stalled and his lights were dim -- slowly downgrade about 175 feet on Brownstown Road in the village of Larimer, Westmoreland County. At this point, Hough's bumper hit plaintiffs who were struck, according to their testimony, while they were walking on a three-foot berm near the property line of their home. Defendant's evidence, on the other hand, proved (if believed) (1) that Hough's automobile was never on the berm, but was continually on the paved portion of the road, and (2) that plaintiffs (who never saw Hough's car before they were struck) were hit while walking across the road at a place where there was no regular crossing. Duncan submitted a point for binding instructions which was refused.

The jury returned a verdict for the defendants and made special findings: (1)(a) that Duncan was not negligent, and (b) that his negligence was not the proximate cause of the accident; and (2) that Hough

[ 420 Pa. Page 251]

(a) was negligent and (b) his negligence was the proximate cause of the accident, and (3) that both plaintiffs were contributorily negligent. The lower Court granted a new trial as to both Hough and Duncan because it had failed to charge the jury properly "on the right of pedestrians, particularly so when not on the highway." From this Order granting a new trial, the original defendant, Duncan, took this appeal.

Duncan contends that this Order of the lower Court should be reversed and judgment entered for him on the ground that plaintiffs failed to prove any negligence on his part. We agree with this contention. It is clear as crystal to anyone who has ever driven an automobile that plaintiffs failed to prove that Duncan was negligent, or if negligent that Hough's driving was not a superseding cause of plaintiffs' injuries. To hold otherwise would mean that it is dangerous and negligent for a motorist to ever use his car to aid a stalled car by pushing it slowly in order that it may have a chance of getting started.

Appellees liken Duncan's action to that of a man who negligently shoots an unguided rocket or missile into the air, or pushes a car down a road without any power of subsequent control. The analogies are clearly inapplicable -- they overlook the important factor and the sharply distinguishing fact that Hough's pushed car was not like a riderless horse or a driverless car or carriage; it had a driver who could completely control it and was under a duty to control it. If Hough failed, any injuries which thereafter occurred were the result of his negligence or of the negligence of the plaintiffs and were not and could not have been caused by Duncan.

Fritz v. York Motor Exp. Co., 358 Pa. 398, 58 A.2d 12, controls this case. In that case ...


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