Appeal from order of Court of Common Pleas of Crawford County, Sept. T., 1965, No. 136, in case of Ruby B. Fugagli, administratrix of estate of Kenneth A. Palmer, deceased v. Victor Camasi.
Stuart A. Culbertson, with him Paul E. Allen, for appellant.
Gerald D. Prather, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Roberts concurs in the result.
This appeal is from an order in the court below granting a new trial in an action arising out of a fatal automobile accident, wherein the jury found for the defendant. We will affirm.
Plaintiff's decedent was a guest passenger in an automobile operated by the defendant. While traversing a curve on an upward grade on a public highway, the automobile went out of control, left the roadway, collided
with the guardrails running adjacent thereto, bounced back on the road and came to a standing position straddling the highway. Plaintiff's decedent was thrown from the automobile and received injuries which caused his death.
From the evidence the jury could find that the defendant was operating the automobile while under the influence of intoxicating liquor, and that at a point approximately three-tenths of a mile from the scene of the accident the automobile was traveling at a rate of speed of at least 90 miles an hour.
In awarding a new trial, the court below stated "the record shouts for justice for the plaintiff" and specifically concluded that the trial judge erred in not submitting to the jury the question of whether wanton misconduct on the part of the defendant was the proximate cause of the accident. With this we agree.
In Evans v. Phila. Trans. Co., 418 Pa. 567, 574, 212 A.2d 440, 443 (1965), we defined wanton misconduct by stating it "'means that the actor has intentionally done an act of an unreasonable character, in disregard of a risk known to him or so obvious that he must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.'"
It is not necessary for the tortfeasor to have actual knowledge of the other person's peril to constitute wanton misconduct. Such exists if he has knowledge of sufficient facts to cause a reasonable man to realize the existing danger for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the danger and, despite this knowledge, he recklessly ignores the other person's peril. See Wilson v. Pa. Railroad Co., 421 Pa. 419, 219 A.2d 666 (1966). Certainly under the proof in the present ...