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WHITTLE v. SCHEMM

November 3, 1975

James WHITTLE et al.
v.
Gordon J. SCHEMM et al.



The opinion of the court was delivered by: BRODERICK

 BRODERICK, District Judge.

 Defendants Knudsen Trucking, Inc. and Gordon J. Schemm have moved the Court for a judgment notwithstanding the verdict and for a new trial. After carefully considering all the grounds urged by the defendants, the Court has determined that it must deny the motions.

 This action for personal injuries was tried in November, 1974 and resulted in a jury verdict in favor of plaintiffs James and Mary Whittle and their son, Richard, against defendants Schemm and Knudsen, and in favor of defendant Lorenzo Guistino. The suit arose out of a motor vehicle accident which occurred on June 12, 1972 on the Pennsylvania Turnpike. The injured plaintiff, Richard Whittle, who was then 18 years of age, was a passenger in an automobile operated by defendant Guistino. Defendant Schemm was the employee of Knudsen Trucking, Inc. and was operating its tractor-trailer.

 At the time of the accident, defendant Guistino was traveling in a westerly direction on the Pennsylvania Turnpike in the right lane at an estimated speed of 60 to 65 miles per hour approximately ten car lengths behind an automobile being operated by James Whittle, father of the injured plaintiff. *fn1" Mary Whittle, mother of the injured plaintiff, was a passenger in the automobile operated by her husband. As the Whittles approached the exit ramp leading from the King of Prussia service plaza, they saw the tractor-trailer driven by Schemm on the exit ramp, and moved into the left lane. Defendant Guistino, who first saw the tractor-trailer when it was adjacent to the curbing of a grass plot which separates the exit ramp from the Turnpike, collided with the trailer when Schemm failed to yield the right of way and came out onto the highway directly in front of Guistino.

 Defendants Knudsen and Schemm assert five grounds in support of the motions for a new trial and judgment notwithstanding the verdict. *fn2" First, they argue that the Court erred in refusing to instruct the jury with respect to superseding cause. Second, they claim error in the failure to properly instruct the jury with respect to degrees of negligence. In their third, fourth and fifth arguments, the defendants claim that the Court erred in permitting Dr. Leshner's testimony to be considered by the jury. Dr. Leshner was an expert witness called by the plaintiffs to establish that Richard had the ability to become an architect; he also testified to Richard's reduced earning capacity based on plaintiff's contention that Richard was not able to continue his college education.

 Failure to Charge on Superseding Cause.

 At the conclusion of the case on liability, counsel for defendants Knudsen and Schemm asked the Court to charge the jury on "superseding cause". They now argue that the Court's failure to do so constituted reversible error. With respect to this issue, the Court explained to the jury that the plaintiff must show that the defendants were negligent and that their negligence was a proximate cause of the accident. The Court further defined the terms "proximate cause" and "negligence" and explained that the jury could find that the accident was proximately caused by the negligence of either defendant or of both defendants. (N.T. 4-78, 4-72). The defendants do not take issue with this portion of the charge, but take the position that the Court should have charged on superseding cause.

 Inasmuch as the Pennsylvania court *fn3" have adopted the position of the Restatement of Torts, 2d ยงยง 404 and 447 on this issue, *fn4" we start with the Restatement's definition of superseding cause, which is as follows:

 
A superseding cause is an act of a third person or other force which by its intervention prevents the [original] actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. *fn5"

 To constitute an intervening cause under the circumstances presented by this case, the act of the third person (Guistino, the driver of the car in which plaintiff was a passenger) must be a negligent act. This principle is clearly stated in the landmark case of Kline v. Moyer, 325 Pa. 357, 364, 191 A. 43, 46 (1937), on which defendants rely. The Kline case delineates the circumstances under which the jury must be charged on the issue of superseding cause:

 
Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause. Where, however, the second actor does not become apprised of such danger until his own negligence, added to that of the existing perilous condition, has made the accident inevitable, the negligent acts of the two tort-feasors are contributing causes and proximate factors in the happening of the accident and impose liability upon both of the guilty parties. (Emphasis added.)

 On the issue of liability, the jury returned a verdict in favor of defendant Guistino. The Court charged the jury as follows:

 
Negligence is the doing of some act which a reasonably prudent person would not do or it is the failure to do something which a reasonably prudent person would do when prompted by considerations which ...

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