Biggs, Ganey and Freedman, Circuit Judges.
This is a diversity case arising under the law of Pennsylvania. Robert Wilson, the father of five year old Timothy Wilson, as guardian of the minor and on his own behalf brought this action against the defendant for negligence and wanton negligence in the design of its Lawndale riding rotary power lawn mower. The negligence alleged was that although it knew that rotary power mowers were dangerous and that injuries resulted from their use, defendant had failed to incorporate brakes, or a declutching device and to properly position and guard the discharge openings, all because of considerations of cost, aesthetics and space. As a result of the absence of a clutching device it was necessary to turn off the engine motor to bring the blade to rest. The defendant denied that it was negligent. As to the claim of the minor it also raised the defense of a superseding cause and as to the father's claim alleged that he was contributorily negligent and that the required jurisdictional amount was lacking.
The plaintiffs' version of the circumstances of the accident was given by the father. He testified that on August 3, 1959, while it was daylight, at about 6:30 P.M., Daylight Saving Time, he was mowing the lawn of his home in Springhouse, Pennsylvania, where he lived with his wife and five young children. He was using the defendant's power mower, which he had recently purchased on a trial basis. He had just finished supper and had left his wife and children in the house, assuming that the children would watch television as they usually did after supper. A little while after he had begun mowing the lawn, Wilson noticed his twenty-two month old daughter, Linda, running toward him. He placed the clutch in neutral, which stopped the forward motion of the mower but left the engine running and the mower blade rotating, and went to his daughter. He picked her up and put her in a swing some distance away. As he was fastening her in the swing, he heard a change in the sound from the lawn mower, and as he turned to look, saw Timothy seated on the mower. It was moving forward up an incline on the lawn. He froze for a moment, and then ran toward Timothy, but before he could reach him, Timothy fell over the side of the mower and its blade cut off the heel and achilles tendon of his right foot.
At the conclusion of plaintiffs' evidence, the trial judge granted defendant's motion to dismiss the father's claim for lack of jurisdiction because the amount in controversy could not exceed $10,000 and also on the merits because he was guilty of contributory negligence as a matter of law. The minor's case went forward, and after defendant presented its evidence the trial judge submitted to the jury the question of the defendant's negligence and on the claim for punitive damages submitted the question of defendant's wanton negligence.*fn1 The jury returned a verdict in favor of the defendant and the subsequent motions for new trial and judgment N.O.V. by the minor and for new trial by the father were denied.
Two questions are presented to us on plaintiffs' appeals: (1) the charge of the court on the question of superseding cause; and (2) the dismissal of the father's claim because of (a) contributory negligence; and (b) the lack of diversity jurisdictional amount.
In the minor's case, the jury was required first to decide whether the defendant was negligent in failing to build a machine safe for ordinary, foreseeable circumstances, and if so, whether the intervening conduct of the father was a "superseding" cause excusing it from liability. The trial judge correctly charged the jury on negligence and then defined superseding cause as existing where the intervening act is "so predominant that regardless of what the other person did, it is immaterial." Again, in describing the difference between superseding and concurring negligence the trial judge told the jury: "Now, if you come to the conclusion that both parties were negligent here, then you would have [to] come to another conclusion in rendering a just verdict by saying, 'Well, they were equally responsible or the negligence of one was so predominant, so superseded the negligence of the other, that it made it immaterial.'" Later the trial judge said: "* * * Was this accident caused because of the negligent design of this machine? Secondly, if you should conclude that the machine was negligently designed, is that what caused the accident to the boy? Third, if you conclude that the company was negligent in designing this, then you must go to the second case and decide what was the primary cause, or what was the cause. Was it the negligence of the father, assuming there was negligence? * * * If you find the father was not negligent and they were negligent, well, that is the end of it. If you find that they are both negligent, then you must find whether it was a concurrent act of both parties or whether one superseded the other and therefore that was the actual proximate cause of this injury."
There can be no doubt from these statements that in determining whether it should hold the defendant liable the jury was guided by a direction which in effect told them that even if the defendant was negligent it was not liable if the father was negligent and his negligence was subsequent to and greater in extent or predominated over the negligence of the defendant. The charge therefore was erroneous under Pennsylvania law for two reasons. In the first place, it failed to tell the jury that in order to be a superseding cause it is not enough that a later act is a predominant cause but that it must be so highly extraordinary as not to have been reasonably foreseeable.*fn2 Secondly, the charge gave no indication that whether the intervening act was foreseeable is to be determined retrospectively and not prospectively.*fn3 These principles have been followed by this Court in Leposki v. Railway Express Agency, Inc., 297 F.2d 849 (3 Cir. 1962), a Pennsylvania diversity case, like this. There the defendant parked its truck facing up a steep hill with a high crown, as a result of which gasoline leaked out of the opening of the gasoline tank into the gutter. A boy who was passing by threw a match into the gutter, igniting the gasoline. The ensuing fire reached the plaintiffs' home where it caused property damage and personal injury to two infant children who were asleep inside. The defendant contended that any negligence on its part was superseded by the boy's act of throwing the lighted match into the gasoline. The trial court instructed the jury: "Should the defendant be excused from liability to the plaintiffs by the intervening act of the boy in igniting the gasoline as he did? Could the defendant reasonably foresee that this might happen? * * * If you decide that it could, you may find for the plaintiffs. If it could not have been anticipated or foreseen, your verdict should be for the defendant."
We reversed, saying: "In Pennsylvania, an intervening negligent act by a third person does not, in all cases, constitute a superseding cause relieving an antecedent wrongdoer from liability for negligently creating a dangerous condition. The act is superseding only if it was so extraordinary as not to have been reasonably foreseeable. * * * The extraordinary nature of the intervening act is, however, determined by looking back from the harm or injury and tracing the sequence of events by which it was produced, * * * i.e., the events are viewed retrospectively and not prospectively. * * *
"The district court's charge, viewed by this standard, was clearly misleading. Whether an intervening act constitutes a superseding cause is a question that is more readily resolved in hindsight, and that which appears to be extraordinary in the abstract may prove to be otherwise when considered in light of surrounding circumstances that existed at the time of the accident. It may be that a particular defendant is unaware of the facts that led to events giving rise to the intervening act, yet the jury, viewing the matter retrospectively, could properly conclude that the act was not extraordinary. * * * Considering the intervening act in light of the circumstances that prevailed at the time defendant parked the truck, can it be said that the boy's act was extraordinary? That is how the jury should have been instructed to view the question." (850-851).
The trial judge therefore should have defined superseding cause and distinguished it from concurring cause by isolating the critical element, whether the act was so extraordinary as not to have been reasonably foreseeable, and should have instructed the jury that whether the act was reasonably foreseeable was to be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisaged the events which unfolded and caused the accident.
These errors in the charge are so fundamental that we must notice them on appeal, despite the plaintiff's failure to object at the time as required by Rule 51. See Leposki v. Railway Express Agency, Inc., supra; McNello v. John B. Kelly, Inc., 283 F.2d 96, 102-103 (3 Cir. 1960). In Leposki (297 F.2d at 850 n. 1), we indicated that the failure of the trial judge to point out the requirement that superseding cause is to be viewed retrospectively rather than prospectively was fundamental error. In the present case, more is involved than the single error which we there found fundamental. Here, in addition, the court failed to instruct the jury adequately on the distinction between superseding and intervening cause. The jury therefore was without adequate guidance on the fundamental question whether defendant should be absolved from liability for negligence by the ...