Appeal from judgment of Court of Common Pleas of Fayette County, June T., 1967, No. 638, in case of Joseph H. Metts v. Albert Griglak et al.
Thomas A. Waggoner, with him D. W. MacDonald, for defendants, appellants.
Herman M. Buck, with him Harry Humbert, and Ray, Buck & John, for additional defendant, appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Mr. Chief Justice Bell concurs in the result. Dissenting Opinion by Mr. Justice Roberts.
This action arose out of a rear-end collision in which a bus owned by Albert and Cyril Griglak and John Stolarik, doing business as the Perry Bus Lines, struck from behind an automobile driven by Mrs. Helen R. Harshman. The accident occurred on the afternoon of February 6, 1966 on Route 51 in Westmoreland County. At the place of the accident Route 51 is a divided four-lane highway, and at the time the vehicles collided the stretch of highway in question was slippery and covered with snow and ice.
Joseph H. Metts was a passenger on the Perry bus when the accident occurred. Thereafter, he brought suit for personal injuries against the Griglaks and Stolarik (hereinafter collectively referred to as Perry); Mikael R. Torkysh, the driver of the bus; and Mrs. Harshman. By a third party complaint pursuant to Pennsylvania Rule of Civil Procedure 2253, Mrs. Harshman joined the Greyhound Corporation (hereinafter Greyhound) as an additional defendant. In Mrs. Harshman's third party complaint, she averred that immediately before the accident she was traveling south on Route 51 when a bus owned and operated by Greyhound overtook and passed her car in the left-hand lane; that in doing so the Greyhound bus had crowded her automobile into a snowbank on the right side of the highway causing her to lose control of its operation; that immediately thereafter her automobile was struck by the Perry bus; that this collision was the direct result of the negligent operation of the Greyhound bus; and that any injuries sustained by plaintiff Metts were proximately caused by the concurrent negligence of Perry, Torkysh, and Greyhound.
After trial the jury returned a verdict in favor of the plaintiff and against all the defendants, including the additional defendant Greyhound. Greyhound filed motions for judgment n.o.v. and for new trial; the court
was unable to see, Torkysh, the Perry driver, continued ahead without reducing the speed of his bus. When the road ahead again became visible, Torkysh saw the Harshman automobile immediately ahead of him, apparently in a slight skid but fully in the right-hand lane. Torkysh was unable to avoid colliding with it, and Metts, a passenger on the bus, sustained an injury to his back in the collision. Neither the bus nor the Harshman automobile were using chains at the time, nor was Torkysh using the sander with which his bus was equipped. At the point of the accident there was an uninterrupted view of the highway for one-half mile, and all parties agreed that the Greyhound bus was out of sight when the accident took place. The point of collision was 1,500 to 2,000 feet from the point the Greyhound bus passed the other vehicles. While the exact position of Mrs. Harshman's automobile at the point of collision was a matter of some conjecture, no evidence was produced to support the theory of the third party complaint that the Greyhound bus, in passing the Harshman vehicle had forced it from the highway into a snow bank and caused Mrs. Harshman to lose control.
As to Greyhound, the case was submitted to the jury on the theory that Greyhound had been negligent in operating the bus at an excessive speed. Clearly Greyhound did owe other travelers on the highway a duty to exercise reasonable caution and in operating its bus at an excessive speed it may have been negligent; certainly it was in violation of the speed limit. But Greyhound could be properly liable only with respect to those harms which proceeded from a risk or hazard the foreseeability of which rendered its conduct negligent. Brusis v. Henkels, 376 Pa. 226, 102 A.2d 146 (1954) and Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289 (1951). Thus, Greyhound's operation of a bus at excessive speed under these conditions created a
risk that the driver might lose control of his vehicle or be unable to stop within his assured clear distance and avoid any collision. In the present case, as it happened, these risks did not mature into harm. Similarly, Greyhound's negligent operation of its vehicle might have jeopardized another driver's control of his own vehicle. As noted above, the third party complaint averred such a chain of events, but there was no evidence to support this factual allegation. Other reasonably foreseeable risks might easily be imagined.*fn2 But in the case at hand, we cannot say that a collision occurring when the Greyhound bus was over one-half mile from the scene, and alleged to have resulted from the creation of a snow swirl (or the throwing of slush) was a harm within the risk foreseeably created by Greyhound's operation of its bus at an excessive speed. In addition, even if it were determined that Greyhound was negligent in raising a snow swirl, we would be obliged to conclude that it was not liable for the damages suffered by Metts. Perry's driver, while admitting that he was unable to see because of ...