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THOMAS A. GRAINY v. BRUCE A. CAMPBELL (09/06/79)

filed: September 6, 1979.

THOMAS A. GRAINY, A MINOR, BY THOMAS F. GRAINY, AND DOROTHY A. GRAINY, HIS PARENTS AND NATURAL GUARDIANS, AND THOMAS F. GRAINY AND DOROTHY A. GRAINY IN THEIR OWN RIGHT
v.
BRUCE A. CAMPBELL, AN INDIVIDUAL, TURNER DAIRY FARMS, INC., A CORPORATION, CHARLES G. TURNER, AN INDIVIDUAL, LYDIA C. TURNER, AN INDIVIDUAL, M. O'HERRON CO., A CORPORATION, EQUITABLE GAS COMPANY, A CORPORATION, AND PEOPLES NATURAL GAS COMPANY, A CORPORATION (TWO CASES). APPEAL OF M. O'HERRON COMPANY. APPEAL OF PEOPLES NATURAL GAS COMPANY AT NO. 748. APPEAL OF BRUCE A. CAMPBELL, AN INDIVIDUAL, AND TURNER DAIRY FARMS, INC. AT NO. 754



No. 714 April Term, 1978, Nos. 748 & 754 April Term, 1978, Consolidated Appeals of M. O'Herron Co., Peoples Natural Gas Company, Bruce A. Campbell and Turner Dairy Farms, Inc., from the Judgment entered March 1, 1978 (as amended) of the Court of Common Pleas of Allegheny County, at No. 3883 October Term, 1973.

COUNSEL

Robert E. Wayman, Pittsburgh, for appellant at No. 714.

John R. Kenrick, Pittsburgh, for appellant at No. 748 and appellee at Nos. 714 and 754.

James E. Coyne, Pittsburgh, for appellants at No. 754 and appellees at Nos. 714 and 748.

Harry Zimmer, Pittsburgh, for Thomas A. Grainy, et al., appellees at Nos. 714, 748 and 754.

Cercone, Wieand and Hoffman, JJ. Hoffman, J., files a concurring and dissenting opinion.

Author: Wieand

[ 269 Pa. Super. Page 227]

On the morning of Saturday, September 25, 1971, Thomas A. Grainy, a minor, and five other Boy Scouts were hiking easterly along the northern berm of Saltsburg Road, a two-lane thoroughfare in Plum Township, Allegheny County. As they walked along the berm the boys came upon an open ditch estimated to be three feet square and four feet deep. This excavation had been made by M. O'Herron Co., which had contracted with Peoples Natural Gas Company to replace a pipeline, and when work stopped on Friday afternoon, the excavation had been left uncovered but barricaded

[ 269 Pa. Super. Page 228]

    with metal horses and piles of dirt. When the boys were confronted by this open excavation, four of them passed it by entering upon and walking across privately owned lawns adjacent to the excavation. Plaintiff and another boy hesitated, intending to enter the roadway and pass around the excavation on the paved surface thereof.

At this moment, Bruce Campbell approached from the east, driving a dump truck owned by Turner Dairy Farms, Inc. and pulling a ten feet long trailer. Campbell testified, and his testimony was uncontradicted, that he observed the open excavation and the hiking Boy Scouts when 300 feet distant. Because he realized the peril of the two boys in the roadway and observed the absence of oncoming traffic, he moved his truck partially to the left side of the highway. The minor plaintiff and his companion thereupon started to pass the excavation on the paved portion of the highway. As Campbell's truck passed the boys, he suddenly swerved again to the right. This caused the first boy to leap upon a dirt pile to avoid being struck. The minor plaintiff, however, was struck by the swerving trailer and knocked into the open excavation. He sustained various injuries for which he sought recovery.

A jury returned a verdict in favor of plaintiff and his parents for $68,000 and against all defendants. Motions for new trial and judgment n. o. v. were denied by the court below, and defendants appealed.

Appellants, M. O'Herron Co. and Peoples Natural Gas Company, had presented motions for binding instructions to the trial court. Their subsequent motions for judgment n. o. v., therefore, comprehended any defense apparent on the record. Koerth v. Turtle Creek Boro, 355 Pa. 121, 127, 49 A.2d 398, 401 (1946); Liquid Carbonic Company v. Truby, 40 Pa. Super. 634, 637-638 (1909). They argued in the court below and in this Court on appeal: (1) that as a matter of law they were free of negligence; (2) that the minor plaintiff was contributorily negligent as a matter of law; and (3) that the excavation was not a proximate cause of the minor

[ 269 Pa. Super. Page 229]

    plaintiff's injuries.*fn1 The remaining appellants, Bruce A. Campbell and Turner Dairy Farms, Inc., argue only that the minor plaintiff was guilty of contributory negligence as a matter of law.

The contentions of all defendants that the minor plaintiff was contributorily negligent as a matter of law and the contentions of O'Herron and Peoples that they were free of negligence cannot be sustained. A judgment n. o. v. is proper only in a clear case, where a defendant's lack of negligence or a plaintiff's contributory negligence is so clear that reasonable minds cannot differ. Lavely v. Wolota, 253 Pa. Super. 196, 384 A.2d 1298 (1978); Hilscher v. Ickinger, 194 Pa. Super. 237, 166 A.2d 678 affd., 403 Pa. 596, 170 A.2d 595 (1961). Where, as here, an obstruction to a sidewalk or pedestrian walkway forces a pedestrian into the roadway, a jury may find negligence on the part of those responsible if they have unreasonably failed to provide the means for safe passage. See: Bacsick v. Barnes, 234 Pa. Super. 616, 341 A.2d 157 (1975). So also, a pedestrian is not guilty of contributory negligence as a matter of law because he or she stepped into the roadway to avoid the obstruction. Eller v. Work, 233 Pa. Super. 186, 336 A.2d 645 (1975); Bacsick v. Barnes, supra. In the instant case, moreover, the testimony disclosed that the minor plaintiff had not stepped into the roadway until after Campbell had steered his truck to the opposite side of the road to allow plaintiff to pass in safety. It was only after he had committed himself to the roadway at Campbell's apparent invitation that he was injured by a change in the direction followed by Campbell's truck.

[ 269 Pa. Super. Page 230]

The issue of proximate cause is more difficult. In Kline v. Moyer and Albert, 325 Pa. 357, 191 A. 43 (1937), the Supreme Court, relying in part upon the Restatement of Torts § 447, held that where a second actor has become aware of the existence of a potential danger created by the antecedent negligence of an original tortfeasor and thereafter, by an independent act of negligence, brings about an accident, the first tortfeasor is relieved of liability because the antecedent condition which he created was merely a circumstance of the accident.

Recent decisions have made it clear that the broad, general rule of law as it pertains to superseding cause is in accord with the view adopted by the Restatement (Second) of Torts § 447. See: Miller v. Checker Yellow Cab Company of Bethlehem, 465 Pa. 82, 348 A.2d 128 (1975); Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Pushnik v. Winky's Drive-In Restaurants, Inc., 242 Pa. Super. 323, 363 A.2d 1291 (1976). This principle, unchanged in substance from the original Restatement view, is as follows:

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 ...


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