Appeal from judgment of Court of Common Pleas of Allegheny County, April T., 1966, No. 3718, in case of Albert S. Klena v. Arthur Rutkowski et al.
Arthur G. Stein, with him Daniel B. Winters, and Stein & Winters, for appellant.
Earl J. Cavanaugh, with him Evans, Ivory & Evans, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Musmanno did not participate in the decision of this case. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice Eagen joins in this dissent.
This is an appeal from the judgment of the Court of Common Pleas of Allegheny County entered on a jury verdict in favor of the plaintiff and against both defendants. The facts are set forth in the opinion of the court below:
"The case arose from a highway accident on November 25, 1965. The plaintiff, Albert Klena, was operating a truck rented by his employer from Massey Rental Company. The truck was furnished by Massey without flares, flashers and flags, as is required by law. Also, it did not have a cap on the gasoline tank. The only cover was a rag stuffed in the opening to the tank.
"While negotiating the dips and curves of McNeilly Road, the truck's motor failed on an uphill portion of the busy thorofare. The vehicle came to a stop blocking one lane of traffic. McNeilly Road is a heavily travelled two lane roadway in the South Hills section of Pittsburgh. With darkness setting in and the traffic flow fast approaching its peak, the disabled truck created a hazardous condition. Since the vehicle was not equipped with the requisite emergency warning devices, the plaintiff switched on all of the auxiliary
lights which were operating. He then proceeded to direct traffic from the middle of the road with a red handkerchief. There was only one lane available to moving vehicles at the point where the truck was stopped and the plaintiff alternated the two lanes of traffic by and around the truck.
"The defendant, Rutkowski, was operating his automobile in the downhill lane toward the disabled vehicle. The plaintiff observed the car and signaled for it to stop when it was approximately 100 feet away. The defendant's approaching auto began slowing down. As the plaintiff turned to signal the waiting cars around the truck, he was struck and seriously injured by the Rutkowski vehicle. Defendant, Rutkowski, testified that he saw the Massey truck when he was about 100 yards away, but he did not see the plaintiff until an instant before impact."
At the close of the evidence, Massey moved for a directed verdict, which motion was denied. The jury then brought in a verdict for the plaintiff against both defendants in the amount of $50,000. Appellant moved for judgment n.o.v., on the ground that as a matter of law, its negligence could not have been the proximate cause of appellee's injuries, because the intervening negligence of Rutkowski constituted a superseding cause. The court below denied the motion for judgment n.o.v.
We believe it erred in doing so. The court below and both parties on appeal agree that the controlling case is Kline v. Moyer and Albert, 325 Pa. 357, 191 Atl. 43 (1937). In that case Albert negligently parked his truck on the side of the highway. Moyer, approaching from the rear, swerved around to the left and struck Kline's car. Massey here is in the position Albert asserted in Kline. The Kline court discussed the situation ...