Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1961, No. 945, in case of Edmund Joseph Cebulskie v. The Lehigh Valley Railroad Company.
Joseph Neff Ewing, Jr., for appellant.
Donald J. Farage, with him David S. Shrager, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Chief Justice Bell, Mr. Justice Jones and Mr. Justice Roberts concur in the result. Mr. Justice Cohen took no part in the decision of this case.
Appellee, Edward Cebulskie, was injured when the delivery truck he was driving went off a bridge maintained by the appellant railroad. Cebulskie brought an action of trespass alleging that the railroad was negligent in maintaining the bridge and that this negligence was the proximate cause of the accident.
At the trial the appellee testified that as he drove onto the bridge, the front wheels of his truck began to "shimmy" when they went from the macadam highway onto the beginning of the bridge surface, which was a few inches lower; that almost immediately thereafter his left front wheel fell into hole in the wooden planking, which caused the truck to veer sharply to its left, the steering wheel being wrenched from his grasp; that his vehicle then skidded along the surface made slippery by the effects of a slight drizzle on the wood preservative creosote, which was applied in and on the planks; and that the truck then went through the guardrail on the south side of the bridge.
Appellee admitted that he had known of the existence of the hole in the planking for some time prior to the accident. He testified that while on earlier occasions he would straddle the hole in order to avoid it, he was unable to do so on the day of the accident because there was an automobile coming across the bridge in the opposite direction forcing him to stay in the right-hand lane and thus preventing him from avoiding the hole. After a verdict for appellee, dismissal of appellant's motions for new trial and judgment n.o.v., and entry of judgment on the verdict, the railroad appealed.
The principal argument raised in the railroad's appeal is that the trial judge erred in instructing the jury no less than fifteen separate times that it should not consider contributory negligence unless it was a "proximate cause" in the happening of the accident. The railroad concedes in its brief that on several occasions, pursuant to the railroad's requests, the trial judge charged the jury that appellee's contributory negligence would bar recovery even if that negligence contributed "in the slightest degree" to the happening of the accident. However, it is the railroad's contention
that the portion of the charge relating to "proximate cause" was completely erroneous and highly prejudicial to its case.
Appellant bases its contention on the opinion of this Court in Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957). However, the assertion in Crane v. Neal that the contributory negligence of the plaintiff need not be the proximate cause of his injury in order to bar recovery is inconsistent with prior Pennsylvania law on this subject: Kasanovich v. George, 348 Pa. 199, 34 A.2d 523 (1943), McFadden v. Pennzoil Company, 341 Pa. 433, 19 A.2d 370 (1941), Weir v. Haverford Elec. Light Co., 221 Pa. 611, 70 A. 874 (1908), and with subsequent law: Hamilton v. Fean, 422 Pa. 373, 221 A.2d 309 (1966), Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961). It is not surprising then that Dean Prosser refers to Crane v. Neal and its "slightest degree" test as a "rather curious aberration." Apparently Crane v. Neal can be made consistent with other ...