under the Doyle precept." Printed Terry Finishing Co. v. City of Lebanon, 247 Pa. Super. 277, 281, 372 A.2d 460, 465 (1977). Thus, Broadway is not shielded from liability simply because the city could have chosen not to install street lights at all.
Broadway cites Dattner v. Lamm, 5 Pa. D. & C. 2d 552 (C.P. Phila. County 1955), and several other cases for the proposition that a municipality has no duty even to maintain street lights once it installs them. Dattner, however, relied primarily on the Thompson case, which is no longer very weighty authority. None of the other decisions cited by Broadway concern the duty to maintain services once they are undertaken, and, in any event, the more recent authorities tend to refute Broadway's contention. See, e.g., Printed Terry Finishing Co. v. City of Lebanon, supra ; Restatement (Second) of Torts § 324A (1965). See generally, Blessing v. United States, 447 F. Supp. 1160, slip op. at 48-52 (E.D. Pa. 1978).
Broadway also contends that this case is controlled by Jamison v. City of Pittsburgh, 360 F.2d 162 (3d Cir. 1966) (per curiam). As I read the brief per curiam opinion in Jamison, however, the court of appeals there held only that the maintenance of traffic lights was a governmental function, and that, under Pennsylvania law, the city of Pittsburgh was therefore immune from suit for any negligence in failing to properly maintain such lights. Subsequent to the decision in Jamison, moreover, the Supreme Court of Pennsylvania abolished the governmental immunity formerly enjoyed by municipalities in the exercise of governmental, as opposed to proprietary, functions. See Ayala v. Philadelphia Bd. of Public Educ., 453 Pa. 584, 305 A.2d 877 (1973). Thus, the governmental-proprietary distinction is no longer significant, and Jamison, insofar as it turned on that distinction, would not be followed today. See also note 3 supra and accompanying text.
Finally, Broadway argues that "even if by some legal contortion, defendant might be said to be negligent in failing to maintain the street lights, such negligence, as a matter of law, could not be the proximate cause of plaintiff's accident, under the facts on which plaintiff relies." Rebuttal to Answer (Document No. 43) at 3 (citation omitted). Ordinarily, of course, the jury determines whether the defendant's negligence was the proximate cause of the plaintiff's injury. See, e.g., Schreffler v. Birdsboro Corp., 490 F.2d 1148, 1154 (3d Cir. 1974); Arkwright Mut. Ins. Co. v. Philadelphia Elec. Co., 427 F.2d 1273, 1275 (3d Cir. 1970); Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94 (1974); Evanuik v. University of Pittsburgh W. Psychiatric Inst. & Clinic, 234 Pa. Super. 287, 338 A.2d 636 (1975); Restatement (Second) of Torts § 328C(c) & Comment c, § 434(a)(a) (1965). Broadway contends, however, that this case comes within the recognized exception applicable where "the critical facts are not in dispute and only their legal effect is in issue." Schreffler v. Birdsboro Corp., supra, 490 F.2d at 1154.
Broadway's argument emphasizes two aspects of this case. First, Broadway points out that the burning automobile that attracted David's attention was giving off a great deal of smoke, thereby obscuring Rowland's view as he drove down 52d Street. Second, Broadway calls attention to David's deposition testimony that the headlights on Rowland's vehicle were not illuminated at the time the accident occurred. David Deposition at 64-65. This, Broadway contends, was negligence per se on Rowland's part, inasmuch as it violated section 4302 of the Vehicle Code, 75 Pa. Cons. Stat. Ann. § 4302 (Purdon 1977).
In short, Broadway argues that the accident was proximately caused by the smoke and by Rowland's negligence in driving without headlights, rather than by the absence of light from the street lights on 52d Street.
The proximate cause requirement in a negligence action "requires a showing of more than 'but for' causation in fact; it requires that the conduct in issue also be a 'substantial factor' in bringing about the harm." Klages v. General Ordnance Equip. Corp., 240 Pa. Super. 356, 373, 367 A.2d 304, 313 (1976); see Restatement (Second) of Torts § 431 (1965). On the facts stated here, I believe that a jury could reasonably conclude that the absence of light from the street lights on 52d Street was both a "but for" cause of the collision and a "substantial factor" in bringing about that collision. Although a jury might well reach the contrary conclusion on either or both of these issues, that is plainly no warrant for resolving the proximate cause issue as a matter of law. So long as a jury reasonably could find that the defendant's conduct proximately caused the plaintiff's injuries, the plaintiff is entitled to a jury determination on that issue.
Moreover, even if, as Broadway contends, the accident was proximately caused by Rowland's negligence and by the smoke coming from the burning vehicle, that would not alter the result here. An event may, of course, have more than one proximate cause. See, e.g., Jones v. Piper Aircraft Corp., 18 F.R.D. 181 (M.D. Pa. 1955). Compare Restatement (Second) of Torts § 432(2) (1965) with id. § 439. Thus, assuming arguendo that the collision was proximately caused by Rowland's negligence, or by the thick smoke in the air, or by both, a jury nevertheless might reasonably find that the absence of light from the street lights was also a proximate cause of the accident, in which event Broadway would not be relieved of liability.
Broadway apparently contends that, in any event, Rowland's failure to use headlights while driving between sunset and sunrise was a superseding cause of the collision, and that Broadway should therefore be relieved of liability as a matter of law. Assuming arguendo that Rowland's conduct amounted to negligence per se, I nevertheless cannot conclude that his conduct was a superseding cause as a matter of law. The law of Pennsylvania plainly states that a negligent intervening act performed by a third party will not relieve the defendant of liability unless that act was so extraordinary as not to have been reasonably foreseeable. See, e.g., Eshbach v. W. T. Grant's & Co., 481 F.2d 940 (3d Cir. 1973); Wilson v. American Chain & Cable Co., 364 F.2d 558 (3d Cir. 1966); Drew v. Laber, 477 Pa. 297, 383 A.2d 941, 944 (1978) (Pomeroy, J., concurring); Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Restatement (Second) of Torts § 447(b) (1965). I cannot say as a matter of law that Rowland's negligence in driving without his headlights falls in this category. Accordingly, I cannot resolve the proximate cause issue in this case, but must leave it to the jury.
For the reasons stated above, Broadway is not entitled as a matter of law to a judgment in its favor, and its motion for summary judgment will be denied.
This 6th day of June, 1978, it is ORDERED that the Motion of Broadway Maintenance Corporation for Summary Judgment is DENIED.