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decided: November 26, 1975.



Victor F. Cavacini, Snyder, Doll & Schantz, Allentown, for appellants.

George A. Hahalis, Bethlehem, for appellee, Ann Miller.

John D. DiGiacomo, Teel, Stettz, Shimer & DiGiacomo, Easton, for appellee, Bell Telephone Co. of Pa.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result. Jones, C. J., dissents.

Author: Nix

[ 465 Pa. Page 84]


This appeal arises from an Action in Trespass brought by Mrs. Ann Miller on behalf of her deceased husband for personal injuries sustained by him during his lifetime.*fn1 The defendants in that action, Checker Yellow Cab Company of Bethlehem, Inc., Central Motoramp Garage Company, Inc., and Paul Pacheco, appellants herein, joined the Bell Telephone Company of Pennsylvania as an additional defendant. The matter proceeded to trial before a jury and a verdict was returned in favor of Miller and against the appellants and Bell Telephone Company of Pennsylvania in the sum of $11,860.55. Thereafter, the trial court entered an order granting a judgment n. o. v. to Bell Telephone Company of Pennsylvania and denied appellants' post-trial motions. The Superior Court affirmed per curiam. We granted allocatur to review the propriety of the grant of judgment n. o. v.

[ 465 Pa. Page 85]

    in favor of Bell Telephone Company of Pennsylvania. For the reasons that follow, we now vacate the order entering the judgment n. o. v. and remand the cause to the trial court for entry of a judgment on the verdict.

In considering a motion for judgment n. o. v., the evidence together with all reasonable inferences therefrom is considered in the light most favorable to the verdict winner. Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968); Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).

The appellee, Mrs. Miller, presented evidence to establish that a telephone wire extended across High Street in the 800 block from a pole on the southwest corner of High & Spruce Streets to the Cancer Society Building on the northeast corner of High & Union Streets in the City of Bethlehem, Northampton County, Pennsylvania. The telephone wire was not of uniform height but was lower at the Cancer Building than at the service pole.

On January 23, 1970, the elevated stack of a passing tractor trailer caught the wire and ripped it loose from the Cancer Building. The unmoored end fell to the ground as the slackened wire lay draped across the other service wires.

At approximately 2:00 P.M. that same afternoon, Mr. Miller, who resided on the east side of the 800 block of High Street, attempted to remove the fallen line from the path of his parked automobile by coiling the wire in loops. Due to the obstruction, two vehicles had come to a stop in the middle of the roadway. However, a third vehicle, a taxicab operated by appellant Pacheco, veered around the other cars and did not halt until the wire was resting on the hood of the cab. Mr. Miller motioned for Pacheco to back up and called the instruction to him several times. The cab driver failed to comply but rather moved forward several car lengths. The wire which had now become entangled around Miller's feet was pulled taut, flipping him into the air and causing him to fall on

[ 465 Pa. Page 86]

    his head. After the accident, it was asertained that the wire was still lying across the hood of the taxi, stuck in the windshield wiper.

The allegation of negligence against Bell Telephone Company was predicated upon two factors. Initially, it is argued that Bell Telephone should have been on notice that trucks had previously come in contact with this low-hanging wire. The record indicates that on November 20, 1968; January 9, 1969; January 16, 1969; and again approximately six months before the incident in question, this particular wire had been similarly knocked down. It was therefore charged that despite these prior experiences, Bell Telephone failed to correct the condition in such a manner as to avoid repeated occurrences. Furthermore, the testimony revealed that a period of one to two hours had elapsed between the time that the Company was notified of this broken wire and the time of Mr. Miller's accident. Thus, it was also contended that the telephone company negligently failed to make repairs within a reasonable time.

The crucial issue presented in this appeal is whether the evidence justified a finding that Pacheco's negligence was a superseding cause as a matter of law.

The controlling rule of law in Pennsylvania on the extent of liability of a negligent actor, where that question is presented in the context of an intervening act of negligence, is contained in section 447 of the Restatement (Second) of Torts (1965):

"§ 447. Negligence of Intervening Acts

The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor's negligent conduct is a substantial factor in bringing about, if

(a) the actor at the time of his negligent conduct should have realized that a third person might so act, or

[ 465 Pa. Page 87]

(b) a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted, or

(c) the intervening act is a normal consequence of a situation created by the actor's conduct and the manner in which it is done is not extraordinarily negligent."

In interpreting this section of the Restatement, this Court has held:

"It is easily seen that this statement of the law, like the rules controlling the question of what conduct is negligent, presents fact questions of its own force. An intervening negligent act will not be a superseding cause relieving the original negligent actor from liability if that actor at the time of his negligent act should have realized that another person's negligence might cause harm; or, if a reasonable man would not regard the occurrence of the intervening negligence as highly extraordinary ; or, if the intervening act is not extraordinarily negligent. What the original actor should have realized and what a reasonable man would say was highly extraordinary are, of course, fact questions which must in the majority of cases be left to the jury."

Flickinger Estate v. Ritsky, 452 Pa. 69, 75, 305 A.2d 40, 43 (1973). (Emphasis in original).

The trial court relied on Whitner v. Lojeski, 437 Pa. 448, 263 A.2d 889 (1970) to substantiate its finding that Bell Telephone was relieved of liability as a matter of law. Whitner holds that ordinary negligence on the part of the second actor is not sufficient to relieve the first actor of liability, but extraordinarily negligent conduct by the second actor will be a superseding cause and insulate the antecedent tort feasor from liability. While we agree with this statement of the law, it is a long standing maxim that a trial court must submit questions of negligence to the jury. The Comment to Section

[ 465 Pa. Page 88453]

of the Restatement (Second) of Torts (1965), "Functions of Court" cautions:

"If, however, the negligent character of the third person's intervening act or the reasonable foreseeability of its being done (see §§ 447 and 448) is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury."

See e. g, Flickinger Estate v. Ritsky, supra; Bleman v. Gold, 431 Pa. 348, 246 A.2d 376 (1968); Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299 (1940); Ashby v. Philadelphia Electric Co., 328 Pa. 474, 195 A. 887 (1938); Scalet v. Bell Telephone Co., 291 Pa. 451, 140 A. 141 (1928); Hargrove v. Frommeyer & Co., 229 Pa. Super. 298, 323 A.2d 300 (1974); Curry v. Wolstencroft, 93 Pa. Super. 13 (1927).

We cannot agree that the evidence to sustain the verdict against Yellow Cab was of such a conclusive and unimpeachable nature as to amount to an admission of intervening extraordinary negligence. Curry v. Wolstencroft, supra at 16.*fn2 In the instant case reasonable minds could and did find Bell Telephone concurrently liable.

[ 465 Pa. Page 89]

Indeed, in retrospect the jury could well have found the taxicab driver's reactions not at all an abnormal or extraordinary consequence of the situation Bell Telephone had initiated. See, Comment (b), Restatement (Second) of Torts, § 443 (1965); Cf. Gaupin v. Murphy, 295 Pa. 214, 145 A. 123 (1928).

[ 465 Pa. Page 90]

It is true that persons who proceeded without due regard for obvious physical obstructions have on occasion been found by this Court to have been extraordinarily negligent as a matter of law. Compare, Flickinger Estate v. Ritsky, supra; Whitner v. Lojeski, supra. However, where the facts upon which the claim of extraordinary negligence is preducated are disputed, as is the case here, see note 2 supra, this dispute must be resolved by the trier of fact upon proper charge. Here, the issue of superseding cause was submitted to the jury in a clear, comprehensive charge, Whitner v. Lojeski, Page 90} supra,*fn3 and the court erred in disturbing their resolution of the issue.

The order of the Superior Court is reversed. The judgment n. o. v. for Bell Telephone Company of Pennsylvania is vacated, and the case remanded for entry of judgment on the verdict.

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