Kalodner, Chief Judge, and McLaughlin and Smith, Circuit Judges. McLaughlin, Circuit Judge (dissenting).
WILLIAM F. SMITH, Circuit Judge.
This is an action under the Wrongful Death and Survival Acts of Pennsylvania, 12 P.S. § 1601 and 20 P.S. § 320.601. The rights and liabilities of the parties are governed by local law. The present appeal is from a judgment entered on a jury verdict in favor of the defendants directed by the court below at the conclusion of the plaintiff's proofs. The direction rested on two grounds, hereinafter separately considered. We are required, as was the court below, to view the evidence in the light most favorable to the plaintiff.
On Saturday, December 12, 1959, at approximately 7:30 P.M., the decedent suffered fatal injuries when he either fell or was thrown from the rear platform of a fire truck owned by the West Wyomissing Fire Co.,*fn1 of which he was a volunteer member. The truck, driven by the defendant Campbell, was moving backward, west to east, along Cleveland Avenue in the 2100 block, at a speed of approximately four to five miles per hour. There were no eyewitnesses to the accident but the evidence offered by the plaintiff was sufficient to establish the following facts and inferences.
From early November of 1959, the defendant J. R. Christ Co. (Company), under contract with Spring Township, had been engaged in the installation of sewer conduits between house lines and the trunk. This work was in progress along Cleveland Avenue in the 2100 block for at least three days prior to the accident, during which time it had rained heavily and intermittently. At each end of the block were two framed barricades, 4 foot x 4 foot, on which the warning "Road Closed -- Construction Ahead" prominently appeared. There is some conflict in the evidence as to the purpose of the barricades, but, whatever their purpose, the street was apparently open to public traffic with the knowledge of the Company. There was no watchman stationed in the area at any time.
On Thursday, December 10, the Company installed a conduit connecting the main sewer to a line on the premises at 2133 Cleveland Avenue, the Klusewitz home. The conduit was laid in a trench three feet in width, eight feet in depth and, from the northerly curb line, twenty feet to twenty-two feet in length. After the installation was completed the trench was back-filled with earth which was topped by a layer of crushed stone. It was discovered after the accident that the fill had settled to a depth of eight to ten inches below the road surface.
On the night of the accident three members of the fire company, including the decedent and Campbell, were assigned the task of pumping water from the flooded cellars of residences in the area. The decedent and Campbell met at the fire hall, located within the 2100 block, where they placed a pump weighing approximately two hundred pounds, on the rear of the fire truck. Intending to pick up the third fireman at his home four hundred feet east of the hall, Campbell backed the truck slowly along Cleveland Avenue. The decedent was standing on the rear platform which was large enough to accommodate six or seven men. The platform, eighteen inches in width and seven feet long, was equipped with a hand rail which extended across the rear of the truck. It was raining, the street was well lighted, and the searchlight on the rear of the truck was in operation.
It can be inferred from the physical facts that the accident occurred in the vicinity of the Klusewitz premises where the decedent was found lying near the northerly curb and east of the depressed trench. There was some conflict in the testimony as to the precise location of the decedent's body; in any event it was no farther than thirty feet from the trench. The decedent died en route to the hospital where it was ascertained that he had suffered a crushed chest. It is conceded that the wheels of the truck did not pass over his body.
The truck was parked in the middle of the street a short distance from the trench. There is some conflict in the testimony as to its exact location but it is uncontradicted that it was south and slightly east of the decedent's body. The mud in the trench bore imprints matching the tread on the rear tires of the truck; similar imprints were on the road surface approximately four feet west and six feet east of the trench. There was evidence from which it could have been inferred that the rear wheels of the truck had spun while in the trench.
The pump, which had been placed on the truck earlier, was found under the truck, forward of the rear platform; the scrape marks in the mud on the road indicated that the pump had been dragged eastwardly for a short distance before the truck was brought to a stop. The only deducible inference is that this heavy pump was dislodged from its position on the truck by a violent force.
The testimony given by Campbell at the trial was in conflict with his earlier admissions made to a police officer shortly after the accident and a written statement given to an investigator a few days before trial. The jury could have concluded from the oral admissions and written statement, admissible in evidence against Campbell, that the rear wheels of the truck became stuck in the sunken area created by the settling of fill in the trench above described. It also could have concluded that in an effort to extricate the truck Campbell put it into a forward-backward motion.
The court below found that the decedent had been guilty of contributory negligence as a matter of law. This finding was erroneous. There was evidence from which it could have been inferred that the decedent was contributorily negligent, but the issue was one for the jury.
It is the settled law of Pennsylvania that: "contributory negligence as a matter of law should be declared only in a very clear case and only where the evidence of such is so clear and palpable that there is no room for fair and sensible men to differ in their conclusions as to its existence." Dougherty v. Philadelphia National Bank, 408 Pa. 342, 184 A.2d 238, 239 (1962); Skoda v. West Penn Power Company, 411 Pa. 323, 191 A.2d 822, 827 (1963). A finding of contributory negligence as a matter of law is warranted only if the evidence "inescapably leads to that conclusion." Smith v. United News Company, 413 Pa. 243, 196 A.2d 302, 305 ...