No. 80-1-36, Appeal from the Opinion Entered September 6, 1979 of the Superior Court of Pennsylvania at Consolidated Appeals Nos. 714, 748, 745 April Term, 1978, reversing the judgment entered March 1, 1978 (as amended) of the Court of Common Pleas of Allegheny County, at No. 3883 October Term, 1973
James E. Coyne, Weis & Weis, Pittsburgh, for appellants.
Robert E. Wayman, Pittsburgh, for M. O'Herron Co.
Harry Zimmer, Pittsburgh, for Thomas Grainy, et al.
John R. Kenrick, Pittsburgh, for Peoples Natural Gas Co.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed a concurring opinion.
This negligence action raises the question of whether an intervening negligent act of a second actor will discharge a first actor's liability for antecedent negligence.
In 1971, appellee M. O'Herron Co. (contractor) was replacing a gas pipeline for appellee Peoples Natural Gas Co. (gas company) along Saltsburg Road in Plum Township, Allegheny County. An uncovered excavation, which was barricaded with metal horses and dirt, obstructed the entire berm on the north side of Satlsburg Road.
Appellee Thomas A. Grainy, age 12, was in a single file line of Boy Scouts hiking eastbound on the berm of Saltsburg Road. These Scouts encountered the excavation. At the same time a truck with a trailer driven by appellant Bruce A. Campbell (truck driver) and owned by appellant Turner Dairy Farms, Inc. (truck driver's employer) was approaching the excavation westbound on the same side of the highway. When the truck driver was about three hundred feet away, he observed the approaching Boy Scouts and the excavation, and moved his truck partially over the double yellow center line of the two-lane highway since there was no on-coming traffic. One of the Scouts, observing that the truck had moved to accommodate their passage, proceeded around the excavation on the paved roadway and Thomas Grainy followed. Although there was no on-coming traffic, the truck driver moved back into the westbound lane as he passed the boys. Thomas Grainy was struck and thrown into the excavation, suffering severe injuries. This lawsuit ensued.
In the trial court the jury returned a verdict in favor of Thomas Grainy against the truck driver, his employer, the contractor, and the gas company. All defendants filed ...