OPINION BY MR. JUSTICE CHIDSEY, November 8, 1954:
The plaintiff, Sherman L. Roadman, brought this action in trespass to recover for personal injuries and property damage arising out of a collision between his automobile and a police patrol car owned by the defendant, City of Jeannette, and operated by defendant, James Bellone, a police officer of that city. The court entered a compulsory nonsuit as to the third defendant, West Penn Power Company. After trial the jury returned a verdict in plaintiff's favor against the City of Jeannette and Bellone in the sum of $27,000. These two defendants filed motions for judgment non obstante veredicto and for new trial and also a motion to take off the nonsuit entered in favor of their codefendant West Penn Power Company. The plaintiff, satisfied with the outcome, filed no motions. From the judgment entered on the verdict Bellone and the City of Jeannette appeal.
In passing on the defendants' motion for judgment n.o.v. it is too well settled to require the citation of cases that in reviewing the evidence we must consider all the facts and reasonable inferences to be drawn therefrom in a light most favorable to plaintiff's cause.
The accident occurred on February 21, 1952, at about 2:30 A.M. The plaintiff was proceeding eastwardly on a 31 foot wide road which runs from the Borough of Irwin, Pennsylvania to the City of Jeannette, Pennsylvania, through the Boroughs of Manor
The defendant Bellone and his companion police officer, on the other hand, testified in effect that as they were driving west along the same road toward the Borough of Penn they noticed two cars approaching in the opposite direction at a high rate of speed. Bellone drove the police car into the vacant lot, turned
Richard Sabo, a disinterested witness, who was driving westwardly about 100 yards behind the police car, largely corroborated the plaintiff's version of the accident. He also testified that the patrol car failed to give any audible warning to oncoming traffic of its intention to enter the highway.
The questions presented are: (1) Was there sufficient evidence of negligence upon the part of the defendants to submit to the jury? (2) Was the plaintiff guilty of contributory negligence as a matter of law? (3) Was the verdict excessive? (4) Was there sufficient evidence of negligence by the defendant, West Penn Power Company, to submit to the jury? (5) If so, was the power company's negligence a proximate cause of the injury?
Under Section 619 of The Vehicle Code of May 1, 1929, P.L. 905, as variously amended, the last amendment being the Act of August 24, 1951, P.L. 1368, 75 PS § 212, a municipality is jointly and severally liable for damages caused by the negligence of its employe while operating its equipment upon a highway in the course of his employment. By virtue of other sections of the Act a police car operated in the chase or apprehension of violators of the law, or persons charged with or suspected of any such violation is exempt from the statutory limitations regarding speed (§ 1002(f), 75
The record reveals that the plaintiff met his burden. Accepting as true the evidence adduced by the plaintiff, the jury would certainly be justified in concluding that the officer in entering a through highway from a vacant lot without any audible or visible warning of his approach was operating his car in a reckless manner. See Mansfield et al. v. Philadelphia et al., supra. It was the jury's prerogative to choose between the two conflicting accounts for the evidence presented issues of fact properly determinable only by that fact-finding tribunal. Furthermore it is questionable whether the police officer was engaged in the type of emergency duty that would clothe him with immunity under the provisions of The Vehicle Code. We held in Cavey, to use v. Bethlehem, 331 Pa. 556, 560, 1 A.2d 653, that the act of a policeman in pursuing and clocking a speeding automobile was not such an official emergency duty as to come within the exemption provisions of the statute.
The plaintiff testified that while in Penn Borough and just before entering Jeannette he was travelling "between 25 and 35 miles an hour". Assuming that this language is to be construed literally, and plaintiff under the most favorable interpretation thereof must be held to have been travelling in excess, however slightly, of the speed limit in Penn Borough, it was still for the jury, as it was instructed by the trial judge, to determine whether the speed at which plaintiff was travelling was a proximate cause of the accident. A
As to the distance which defendants claim the plaintiff's car skidded, Bellone and his companion police officer testified that they found and measured skid marks from the Borough of Penn to the point of impact and from there to the utility pole and that they were 140 feet and 48 feet respectively, or a total distance of 188 feet. The plaintiff testified that when he first saw the police car and applied his brakes he travelled about 35 feet before the collision and about 35 feet after the impact. The eye witness Sabo corroborated the plaintiff as to the latter distance. The case in this respect is similar to Wermeling v. Shattuck et al., 366 Pa. 23, 29, 76 A.2d 406, wherein we said: ". . . `No fact based on oral testimony in a trial ever possesses the character of legal incontrovertibility until it receives the imprimatur of a jury's acceptance':. . .". We are satisfied in view of the conflicting estimates that it was the jury's function and not the court's to declare whether plaintiff was guilty of contributory negligence.
In support of their motion for a new trial the defendants contend that the verdict was excessive. We do not agree. The plaintiff, who was 28 years of age at the time of the accident, was employed by the Westinghouse Air Brake Company at a salary of $60 a week. He proved loss of earnings from the time of the accident to the time of trial, a period of 102 weeks, in the amount of $6,120. The evidence shows that the
The only remaining matter to be considered is the refusal of the court below to take off the compulsory nonsuit in favor of West Penn Power Company. The record shows that the defendant power company's transformer was hung upon a cross arm, fastened to a pole located 5.7 feet from the edge of the southerly line of the paved portion of the highway. The bottom of the transformer rested against a kicker arm or another cross arm designed to hold the transformer in a position perpendicular with the pole. Admittedly
It is questionable whether there was sufficient evidence of negligence by the West Penn Power Company to submit to the jury and the refusal of the court below to take off the compulsory nonsuit as to that defendant might well be sustained on that ground. However, even if we should assume, arguendo, that the Power Company was negligent in its maintenance of the transformer, a recovery could not be permitted against it unless such negligence was a legal cause of the accident.
It is true that an intervening negligent act is not always a superseding cause which relieves an antecedent wrongdoer from liability for negligently creating a dangerous condition which results in injury: Restatement, Torts, § 447. This section has been cited with approval in Darrah v. Wilkinsburg Borough, 318 Pa. 511, 178 A. 669; Murray v. Pittsburgh Athletic Co., 324 Pa. 486, 188 A. 190; Kline v. Moyer, 325 Pa. 357, 191 A. 43; Nelson v. Duquesne Light Co., 338 Pa. 38, 12 A.2d 299; Mautino v. Piercedale Supply Co., 338 Pa. 435, 13 A.2d 51; Brogan v. Philadelphia, 346 Pa. 208, 29 A.2d 671; Styer v. Reading, 360 Pa. 212, 61 A.2d 382; Malitovsky v. Harshaw Chemical Co., 360 Pa. 279, 61 A.2d 846; St. John v. Kepler, 360 Pa. 528, 61 A.2d 875; and Levine v. Mervis, 373 Pa. 99, 95 A.2d 368. These cases have greatly modified the decision in Stone v. Philadelphia, 302 Pa. 340, 152 A. 550,
However, some intervening negligent acts which operate upon a condition created by an antecedent tortfeasor do constitute superseding causes and relieve him of liability. In determining whether an intervening force is a superseding cause we said in Hendricks v. Pyramid Motor Freight Corp., 328 Pa. 570, 574, 195 A. 907, 909: "The answer to this inquiry depends on whether the [intervening] conduct was so extraordinary as not to have been reasonably foreseeable or whether it was reasonably to be anticipated." The Restatement, Torts, § 435(2), (1948 Supplement, p. 736) says: "The actor's conduct is not a legal cause of harm to another where after the event and looking back from the harm to the actor's negligent conduct, it appears to the court highly extraordinary that it should have brought about the harm." Cf. Restatement, Torts, Penna. Annotations, § 442. In view of the particular circumstances of this case, — including the recklessness with which the police car was operated, the location of the pole on private property, the force of the blow which moved the pole one inch from its base, and the fact the plaintiff was thrown out of his car and landed on the very spot on which the transformer fell, after glancing off plaintiff's car, — we conclude that the manner in which the Power Company maintained its transformer on the pole was not a legal cause of the plaintiff's injuries. These facts distinguish this case from Nelson v. Duquesne Light Co., supra, upon which appellants principally rely. As the question is one of superseding cause, and there is no dispute as to the pertinent facts, the court may decide it as a matter of law: Hendricks v. Pyramid Motor Freight Corp., supra; Restatement, Torts, § 453.