Staley, Seitz and Gibbons, Circuit Judges. Aldisert, Circuit Judge (dissenting). On Rehearing: Hastie, Chief Judge, and Staley, Freedman, Seitz, Van Dusen, Aldisert, Adams, Gibbons and Rosenn, Circuit Judges.
This is an appeal from a final judgment entered on a jury verdict in a diversity negligence case. The case arises out of a three car accident which occurred on Route 1 in Bucks County, Pennsylvania, on January 5, 1963. Margaret Haddigan was a passenger in the car driven by her husband, Thomas W. Haddigan. In the accident she suffered severe personal injuries from which, in less than two hours, she died. On December 31, 1963 her administrator, a New Jersey resident, filed suit against Cornelius J. Harkins, driver of the second car, and William T. Baker, driver of the third car involved in the accident. He sought damages for pecuniary loss suffered by survivors of the decedent under the Pennsylvania Wrongful Death Act, 12 P.S. § 1601 (1953), and damages for her estate under the Pennsylvania Survival Act, 20 P.S. § 320.601 (1950), for the present worth of the earning power of decedent during her life expectancy, and for her pain and suffering while she survived.
Harkins, who was also severely injured in the accident, filed a cross-claim against Baker for contribution and for his personal injuries. He also filed a third-party complaint against Haddigan, the driver of the car in which plaintiff's decedent was a passenger, for contribution and for his personal injuries.
Haddigan, who was also severely injured in the accident, filed cross-claims against Harkins and Baker for contribution and for his personal injuries.
Baker, who fortunately was not injured, filed cross-claims for contribution against Harkins and Haddigan.
The same insurance company insured both Haddigan and Harkins. The attorney for the plaintiff filed on Haddigan's behalf his personal injury cross-claim, while an attorney furnished by the insurer filed his answer and cross-claim for contribution. Harkins, too, had an attorney as a personal injury cross-claimant and a separate attorney as defendant and cross-claimant for contribution.
Following the typical course of discovery and pretrial motions the case was reached for trial on January 10, 1968, five years and five days after the accident. The trial consumed ten trial days. The jury verdict on special interrogatories resulted in a judgment in favor of the administrator and against Harkins and Baker on the wrongful death claim for $64,754.30, and on the survival claim for $7,500. Neither Harkins nor Haddigan recovered for their personal injuries. Because Haddigan was found to be negligent the judgment excluded him from sharing as a beneficiary in the wrongful death recovery. Each cross -claimant was held to be entitled to contribution. Thus the insurer for Baker was liable for one-third, and the common insurer for Harkins and Haddigan for two-thirds of the total of $72,254.30.
As might be expected, the result satisfied no one except the plaintiff administrator. Each of the other parties in their varying capacities made appropriate motions pursuant to Rule 50 and Rule 59, Fed.R.Civ.P., advancing numerous objections with respect to rulings on evidence, the weight or sufficiency of the evidence, the court's charge, the interrogatory submitted to the jury, and the result; principally the latter. These objections were briefed and the district court heard argument on them on December 27, 1968. On September 17, 1969, 304 F. Supp. 173, it filed a lengthy opinion in which it considered all allegations of error which had been timely raised, and rejected each of them. The unsuccessful parties found that opinion to be no more satisfactory than the judgment. Every party except the plaintiff administrator appealed in each capacity, and this court has had the benefit of a nine hundred seventy-two page appendix and ten separate briefs, some of which were helpful.
The allegations of error relate both to liability and to damages. The liability aspect will be treated first.
These facts are undisputed: Haddigan was driving south on Route 1, a four lane highway on which the northbound and southbound lanes are divided by a medial concrete divider 32 inches wide and 12 inches high. He lost control of his car, which swerved to the left, from the right hand southbound lane up onto the medial divider and protruding into the left hand northbound lane. Harkins was driving north on Route 1 in the left hand northbound lane. Baker was driving north on Route 1 in the right hand northbound lane. It was dark. There was a crash in which all three cars were involved in some manner. There was no obstruction to visibility from the point where the Haddigan car crossed the medial divider to a point in excess of one hundred fifty yards south on Route 1. Both Haddigan and the decedent were thrown from their car. When the cars came to rest after the impact, Harkins' car was somewhat to the north of the other two, severely damaged in the left front area. Haddigan's car was in the left hand northbound lane near the point where it crossed the medial barrier, facing north, and severely damaged in the right front and right side areas. Baker's car, facing north, was in close proximity to Haddigan's. Mrs. Haddigan was underneath Baker's car.
In seeking a reversal, Baker contends that under Pennsylvania law there was insufficient evidence to support a finding of negligence. He contends that there was no evidence that at any time up to the impact there was a geometric line of sight from him to the Haddigan car astride the median barrier. This, he argues, would place him within the rule of Adley Express Co. v. Willard, 372 Pa. 252, 93 A.2d 676 (1953), and Hughes v. Zearfoss, 194 Pa.Super. 408, 168 A.2d 628 (1961) that a driver in a four lane highway need not anticipate that a driver on the opposite side would cut across the divider. However, there is testimony that the Haddigan car was stopped, facing southward at an angle across the divider with its lights on and its engine stalled, for a half minute, and that Baker, riding at about thirty miles an hour side by side with Harkins, had an unobstructed view, during that time, of between one hundred and one hundred fifty yards, with unobstructed maneuvering room on the right hand paved shoulder of the road. We must assume that the jury believed this testimony.
Next, relying on Nixon v. Chiarilli, 385 Pa. 218, 122 A.2d 710 (1956), and Jones v. Williams, 358 Pa. 559, 58 A.2d 57 (1948), Baker contends that it was not negligence for him to fail to anticipate the negligence of Harkins. These cases are not apposite however, for while a driver may assume that another driver will stay in his own lane (Nixon v. Chiarilli) or that he will obey a traffic sign (Jones v. Williams) he may not disregard an observable extreme hazard. Sudol v. Gorga, 346 Pa. 463, 31 A.2d 119 (1943). There is testimony from which the jury could find that Baker continued forward in tandem with Harkins until it was too late for both to avoid the hazard presented by the protrusion of the Haddigan car into the left hand northbound lane. That testimony is also sufficient to dispose of Baker's next contention, that Harkins' negligence was the primary efficient proximate cause excluding his liability. This is not a case where Baker's "fault (happens) to concur with something extraordinary, and therefore not likely to be foreseen, * * *" Thubron v. Dravo Contracting Co., 238 Pa. 443, 446, 86 A. 292, 293 (1913). Accepting, as we must, the testimony tending to show that he proceeded in tandem with Harkins for over a hundred yards toward an observable hazard, the resulting accident was hardly an improbable and unlikely consequence of Baker's negligence. Cases such as Whitley v. Philadelphia Transportation Co., 211 Pa.Super. 288, 234 A.2d 922 (1967); Coyne v. Pittsburgh Ry., 393 Pa. 326, 141 A. 2d 830 (1958); and Vereb v. Markowitz, 379 Pa. 344, 108 A.2d 774 (1954) and more in point than Stone v. City of Philadelphia, 302 Pa. 340, 153 A. 550 (1931) or Thubron v. Dravo Contracting Co., supra, on which Baker relies.
Relying on the strange case of Eckley v. Seese, 382 Pa. 425, 115 A.2d 227 (1955) and on Haldeman v. Bell Telephone Co. of Pennsylvania, 387 F.2d 557 (3 Cir. 1968), Baker suggests that we should reverse because the proof of causation of decedent's injuries was at best evenly balanced in that plaintiff did not show which car, his or Harkins', caused the massive head and internal injuries from which she died. Haddigan was unable to recall the exact sequence of events which occurred in the microseconds elapsing between the time Harkins' car first made contact and the time his wife came to rest beneath Baker's car. Apparently because of his injuries, which included a fractured skull, he remembered nothing after her scream of warning as he tried to start his stalled car. But Baker's deposition, read into evidence in plaintiff's case, contains this admission:
Q. Did your vehicle cross over or run over any object?
There was, in addition, evidence of a dent in the left front hood of Baker's car, which would be consistent with it striking the decedent as she was ejected from her car. If this was not ample for a jury question, ...