Appeal from judgment of Court of Common Pleas of Cambria County, Sept. T., 1971, No. 284, in case of Robert C. Noon v. Jan E. Knavel, Ned J. Allison t/d/b/a Allison's Service Station, General Telephone Company of Pennsylvania and The Baltimore & Ohio Railroad Company.
Charles Kirshner, with him R. Thomas Strayer, and Rosenberg, Kirshner & Solomon, for appellant.
Gary F. Sharlock, with him Sharlock & Repcheck, for appellee, The Baltimore & Ohio Railroad Company.
J. Phillips Saylor and Samuel R. DiFrancesco, Jr., with them Robert G. Rose, James R. Di Francesco, James F. O'Malley, and Spence, Custer, Saylor, Wolfe & Rose, Gleason, Di Francesco, Shahade & Markovitz, and Yost & O'Malley, for appellees.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Concurring Opinion by Price, J. Dissenting Opinion by Jacobs, J. Watkins, P. J., and Van der Voort, J., join in this dissenting opinion.
[ 234 Pa. Super. Page 202]
Appellant, the General Telephone Company of Pennsylvania, contends that the lower court erred in failing to grant its motion for judgment non obstante veredicto on the grounds that its negligence was not the proximate cause of appellee Noon's injuries.
Appellant, a public utility, was the owner of a public telephone booth which was located immediately adjacent to the grade crossing of the Baltimore and Ohio Railroad at Bedford Street in the City of Johnstown. The telephone booth was located approximately 9 1/2 feet from the curb
[ 234 Pa. Super. Page 203]
of Bedford Street, and only five feet from the railroad track, so close that it was actually located on the railroad's right-of-way. The railroad tracks run approximately north and south. The approach to the grade crossing from the east, down Bedford Street, includes a long downgrade. Immediately before the grade crossing, and beginning approximately at the intersection of Adams Street, vehicles must traverse an S-curve while still proceeding downhill, and be prepared to brake at the railroad crossing, which is marked by flashing lights, but not protected by crossing gates. The telephone booth was located in such a position that an automobile coming downhill which failed to negotiate the second half of the S-curve could easily strike the booth. Despite this fact, no special safety precautions were taken in the construction of the booth. The jury found that appellant's placement of the booth created an unreasonable danger to appellant's customers, and thus constituted negligence on the part of appellant. No appeal has been taken from the finding of negligence, but only from the finding that this negligence was a proximate cause of the injuries involved in this suit.
On August 30, 1969, Jan E. Knavel, a defendant below but not a party to this appeal, noticed that his car's brakes were not functioning properly. At approximately 9:30 p.m., Knavel visited Allison's Service Station, which was located approximately two blocks from Knavel's home. Ned J. Allison, the proprietor of the station (also a defendant below), informed Knavel that he lacked the necessary parts required for permanent repairs. Knavel then requested that temporary repairs be made on the brakes. Allison then plugged the hydraulic brake line leading to the left rear wheel, and instructed Knavel to return his car the next day for permanent repairs. Despite this warning, Knavel drove some 14 miles to a friend's residence in Rummel, where a cook-out was in progress. Knavel testified that he had no brake trouble on
[ 234 Pa. Super. Page 204]
this route. Knavel remained at the cook-out for approximately one and a half hours. During this time, he drank two beers. Knavel and his brother-in-law, Dean Fickes, then set out for "Coney Island" to get a hot dog. Knavel proceeded down Route 56, towards Johnstown. At about 2 a.m., a Dale Borough police officer, who had been parked by the side of the road, noticed Knavel illegally passing another car, and set out in pursuit. Knavel testified that about this time he noticed that his accelerator pedal was stuck in the half-way position, and that his brakes were not working at all. At one point, Knavel applied his emergency brake; this slowed the car momentarily but failed to stop it.
Despite this lack of control of his car, Knavel was able to avoid any collision until he reached the section of Bedford Street containing the treacherous S-curve and grade crossing. Testimony of some witnesses indicated that Knavel's car glanced off a light pole located on the outside of the first section of the S-curve. At approximately this point, Knavel first saw that a Baltimore and Ohio Railroad train had entered the grade crossing, southbound, at a speed of approximately two or three miles per hour, and now almost completely blocked the intersection. Knavel testified that he then gave up hope of controlling his car and simply closed his eyes, awaiting the collision. Knavel's car collided with the front of the slow-moving locomotive, then crashed through the phone booth in which appellee, Noon, was standing, making a telephone call. Knavel's car came to rest against an unoccupied car, on the property of the service station located adjacent to the phone booth. Although Knavel suffered only minor injuries, Noon lost both his legs as a result of the accident.
Noon brought suit against Knavel, Ned J. Allison, trading and doing business as Allison's Service Station, the Baltimore and Ohio Railroad Company, and the appellant, General Telephone Company of Pennsylvania. On
[ 234 Pa. Super. Page 205]
October 25, 1972, a jury in the Court of Common Pleas of Cambria County returned a verdict of $216,761.00 in favor of Noon and against Knavel and the General Telephone Company. Post-trial motions were denied and on October 26, 1973, the lower court entered judgment on this verdict. From this judgment, the General Telephone Company appealed.
In general, an actor is liable for negligence if
"(a) the interest invaded is protected against unintentional invasion, and
"(b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and
"(c) the actor's conduct is a legal cause of the invasion, and
"(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion." Restatement of Torts 2d, § 281 (1965). In the instant case, there is no question that the interest in bodily integrity is protected against unintentional invasion. The jury below found that appellant's actions were negligent; no appeal has been taken from that finding. No issue of contributory negligence or assumption of risk is involved in this appeal. The only questions involved in appellant's request for a judgment n.o.v. are, therefore, whether its actions were negligent with respect to a person in Noon's position, and whether appellant's conduct was a legal or proximate cause of Noon's injuries.
[ 234 Pa. Super. Page 206]
It is well settled that the appellant "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." Metts v. Griglak, 438 Pa. 392, 396, 264 A.2d 684, 687 (1970). The Restatement refers to this as "the hazard problem;" it is sometimes referred to generally as a Palsgraf problem, after Palsgraf Page 206} v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).*fn1 Comment e to Restatement of Torts 2d, § 281(b), another part of which is quoted in Metts v. Griglak, at 397, n. 2, 264 A.2d at 687, n. 2, explains that "[c]onduct is negligent because it tends to subject the interests of another to an unreasonable risk of harm. Such a risk may be made up of a number of different hazards, which frequently are of a more or less definite character." Comment f notes that "[w]here the harm which in fact results is caused by the intervention of factors or forces which form no part of the recognizable risk involved in the actor's conduct, the actor is ordinarily not liable."
Appellant's argument on this point, put simply, is based on the assumption that the jury's finding that placement of the phone booth was negligent was based solely on its proximity to the S-curve and the downgrade in the road, and was not based even in part on the fact that the booth was located a few feet away from the railroad track at a grade crossing. As this assumption is not adequately supported by the record, appellant's argument on this point must be rejected. Appellant's contention is apparently based on one statement by William T. Jackman, an engineer who testified as Noon's safety witness, taken out of context. In this statement, Jackman noted that "because of the topography, the down grade, the two curves in the street, it was only a matter of time before that an accident was going to occur."*fn2 Nevertheless, Jackman referred to the railroad tracks several times in discussing his opinion on the safety of the location of the booth. On cross-examination, Jackman indicated that the proximity
[ 234 Pa. Super. Page 207]
of the booth to the railroad was one of the factors that led him to believe that the location was dangerous.
In addition, the jury was not limited to Jackman's testimony in determining whether or why the location of the booth was hazardous.*fn3 The jury took a view of the scene of the accident, studied some two dozen photographs of the scene, and heard several volumes of testimony concerning the circumstances of the accident. The jury had ample evidence, even apart from the expert testimony, to determine whether the location of the booth was hazardous, and is so, for what reasons. Indeed, the judge charged the jury to determine whether "it [was] foreseeable by the telephone company that the placement of the booth at the railroad crossing on Bedford Street, at the bottom of a grade, at the end of an S-curve, on highway Route 56, otherwise known as Bedford Street, that the risk of harm, such as that experienced by Mr. Noon, could occur?" (Emphasis supplied.)
[ 234 Pa. Super. Page 208]
On a motion for judgment n.o.v., the evidence and all reasonable inferences arising therefrom must be construed in the light most favorable to the verdict winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973). The jury might well have found that the phone booth was in a dangerous position because of its proximity to the railroad track, in addition to and in combination with its proximity to a dangerous curved and sloping road. We must, therefore, assume that such a finding was made. Thus, we must reject appellant's contention that the hazard of a grade crossing accident was not one of the hazards on which the finding of negligence was based. "It must be remembered that it is not this Court's function to substitute our judgment or evaluation of evidence where there is some credible evidence upon which to base the jury's verdict. As our Supreme Court said in Smith v. Page 208} Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 138-139, 153 A.2d 477, 479-480 (1959): '[T]he evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that the conclusion must be the only one which logically can be reached. . . .'" Eldridge v. Melcher, 226 Pa. Superior Ct. 381, 387, 313 A.2d 750, 754 (1973). As the jury might reasonably have found that a railroad crossing accident was one of the hazards which made the placement of the booth negligent, and that the accident which actually occurred was a harm proceeding from that hazard, we cannot say on appeal that the hazard which rendered the placement of the booth negligent was unrelated to the harm which appellee, Noon, suffered.
Even though appellant's conduct was negligent, appellant can only be liable to Noon for Noon's injuries if its negligence was the proximate or legal cause of those injuries. Pennsylvania now follows the rules on legal cause set forth in the Restatement of Torts 2d, §§ 431 and 432. Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970). Section 431 provides that "[t]he actor's negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm." Section 432(1) provides that "[e]xcept as stated in Subsection (2) [dealing with concurrent forces, each of which alone is sufficient to produce the harm], the actor's negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent." Thus, under Sections 431(a) and 432(1), in order ...