Noon v. KNAVEL

339 A.2d 545, 234 Pa. Super. 198, 1975 Pa. Super. LEXIS 1517

• Court: Superior Court of Pennsylvania
• Decided: April 22, 1975
• Docket: Appeal, 47
• Status: Published

Opinions

Opinion by

Hoffman, J.,

Appellant, the General Telephone Company of Pennsylvania, contends that the lower court erred in failing to grant its motion for judgment non obstante veredicto on the grounds that its negligence was not the proximate cause of appellee Noon’s injuries.

Appellant, a public utility, was the owner of a public telephone booth which was located immediately adjacent to the grade crossing of the Baltimore and Ohio Railroad at Bedford Street in the City of Johnstown. The telephone booth was located approximately 9% feet from the curb of Bedford Street, and only five feet from the railroad track, so close that it was actually located on the railroad’s right-of-way. The railroad tracks run approximately north and south. The approach to the grade crossing from the east, down Bedford Street, includes a long downgrade. Immediately before the grade crossing, and beginning approximately at the intersection of Adams Street, vehicles must traverse an S-curve while still proceeding downhill, and be prepared to brake at the railroad crossing, which is marked by flashing lights, but not protected by crossing gates. The telephone booth was located in such a position that an automobile coming downhill which failed to negotiate the second half of the S-curve could easily strike the booth. Despite this fact, no special safety precautions were taken in the construction of the booth. The jury found that appellant’s placement of the booth created an unreasonable danger to appellant’s customers, and thus constituted negligence on the part of appellant. No appeal has been taken from the finding of negligence, but only from the finding that this negligence was a proximate cause of the injuries involved in this suit.

On August 30, 1969, Jan E. Knavel, a defendant below but not a party to this appeal, noticed that his car’s brakes were not functioning properly. At approximately 9:30 p.m., Knavel visited Allison’s Service Station, which was located approximately two blocks from Knavel’s home. Ned J. Allison, the proprietor of the station (also a defendant below), informed Knavel that he lacked the necessary parts required for permanent repairs. Knavel then requested that temporary repairs be made on the brakes. Allison then plugged the hydraulic brake line leading to the left rear wheel, and instructed Knavel to return his car the next day for permanent repairs. Despite this warning, Knavel drove some 14 miles to a friend’s residence in Rummel, where a cook-out was in progress. Knavel testified that he had no brake trouble on this route. Knavel remained at the cook-out for approximately one and a half hours. During this time, he drank two beers. Knavel and his brother-in-law, Dean Fickes, then set out for “Coney Island” to get a hot dog. Knavel proceeded down Route 56, towards Johnstown. At about 2 a.m., a Dale Borough police officer, who had been parked by the side of the road, noticed Knavel illegally passing another car, and set out in pursuit. Knavel testified that about this time he noticed that his accelerator pedal was stuck in the half-way position, and that his brakes were not working at all. At one point, Knavel applied his emergency brake; this slowed the car momentarily but failed to stop it.

Despite this lack of control of his car, Knavel was able to avoid any collision until he reached the section of Bedford Street containing the treacherous S-curve and grade crossing. Testimony of some witnesses indicated that Knavel’s car glanced off a light pole located on the outside of the first section of the S-curve. At approximately this point, Knavel first saw that a Baltimore and Ohio Railroad train had entered the grade crossing, southbound, at a speed of approximately two or three miles per hour, and now almost completely blocked the intersection. Knavel testified that he then gave up hope of controlling his car and simply closed his eyes, awaiting the collision. Knavel’s car collided with the front of the slow-moving locomotive, then crashed through the phone booth in which appellee, Noon, was standing, making a telephone call. Knavel’s car came to rest against an unoccupied car, on the property of the service station located adjacent to the phone booth. Although Knavel suffered only minor injuries, Noon lost both his legs as a result of the accident.

Noon brought suit against Knavel, Ned J. Allison, trading and doing business as Allison’s Service Station, the Baltimore and Ohio Railroad Company, and the appellant, General Telephone Company of Pennsylvania. On October 25, 1972, a jury in the Court of Common Pleas of Cambria County returned a verdict of $216,761.00 in favor of Noon and against Knavel and the General Telephone Company. Post-trial motions were denied and on October 26, 1973, the lower court entered judgment on this verdict. From this judgment, the General Telephone Company appealed.

I

In general, an actor is liable for negligence if

“(a) the interest invaded is protected against unintentional invasion, and

“ (b) the conduct of the actor is negligent with respect to the other, or a class of persons within which he is included, and

“(c) the actor’s conduct is a legal cause of the invasion, and

“(d) the other has not so conducted himself as to disable himself from bringing an action for such invasion.” Restatement of Torts 2d, § 281 (1965). In the instant case, there is no question that the interest in bodily integrity is protected against unintentional invasion. The jury below found that appellant’s actions were negligent; no appeal has been taken from that finding. No issue of contributory negligence or assumption of risk is involved in this appeal. The only questions involved in appellant’s request for a judgment n.o.v. are, therefore, whether its actions were negligent with respect to a person in Noon’s position, and whether appellant’s conduct was a legal or proximate cause of Noon’s injuries.

It is well settled that the appellant “could be properly liable only with respect to those harms which proceeded from a risk or hazard the foreseeability of which rendered its conduct negligent.” Metts v. Griglak, 488 Pa. 392, 396, 264 A.2d 684, 687 (1970). The Restatement refers to this as “the hazard problemit is sometimes referred to generally as a Palsgraf problem, after Palsgraf v. Long Island R. Co., 248 N.Y. 389, 162 N.E. 99 (1928).¹ Comment e to Restatement of Torts 2d, §281 (b), another part of which is quoted in Metts v. Griglak, at 397, n. 2, 264 A. 2d at 687, n. 2, explains that “[cjonduct is negligent because it tends to subject the interests of another to an unreasonable risk of harm. Such a risk may be made up of a number of different hazards, which frequently are of a more or less definite character.” Comment f notes that “[wjhere the harm which in fact results is caused by the intervention of factors or forces which form no part of the recognizable risk involved in the actor’s conduct, the actor is ordinarily not liable.”

Appellant’s argument on this point, put simply, is based on the assumption that the jury’s finding that placement of the phone booth was negligent was based solely on its proximity to the S-curve and the downgrade in the road, and was not based even in part on the fact that the booth was located a few feet away from the railroad track at a grade crossing. As this assumption is not adequately supported by the record, appellant’s argument on this point must be rejected. Appellant’s contention is apparently based on one statement by William T. Jackman, an engineer who testified as Noon’s safety witness, taken out of context. In this statement, Jackman noted that “because of the topography, the down grade, the two curves in the street, it was only a matter of time before that an accident was going to occur.”² Nevertheless, Jackman referred to the railroad tracks several times in discussing his opinion on the safety of the location of the booth. On cross-examination, Jackman indicated that the proximity of the booth to the railroad was one of the factors that led him to believe that the location was dangerous.

In addition, the jury was not limited to Jackman’s testimony in determining whether or why the location of the booth was hazardous.³ The jury took a view of the scene of the accident, studied some two dozen photographs of the scene, and heard several volumes of testimony concerning the circumstances of the accident. The jury had ample evidence, even apart from the expert testimony, to determine whether the location of the booth was hazardous, and is so, for what reasons. Indeed, the judge charged the jury to determine whether “it [was] foreseeable by the telephone company that the placement of the booth at the railroad crossing on Bedford Street/at the bottom of a grade, at the end of an S-curve, on highway Route 56, otherwise known as Bedford Street, that the risk of harm, such as that experienced by Mr. Noon, could occur?” (Emphasis supplied.)

On a motion for judgment n.o.v., the evidence and all reasonable inferences arising therefrom must be construed in the light most favorable to the verdict winner. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A. 2d 40 (1973). The jury might well have found that the phone booth was in a dangerous position because of its proximity to the railroad track, in addition to and in combination with its proximity to a dangerous curved and sloping road. We must, therefore, assume that such a finding was made. Thus, we must reject appellant’s contention that the hazard of a grade crossing accident was not one of the hazards on which the finding of negligence was based. “It must be remembered that it is not this Court’s function to substitute our judgment or evaluation of evidence where there is some credible evidence upon which to base the jury’s verdict. As our Supreme Court said in Smith v. Bell Telephone Co. of Pennsylvania, 397 Pa. 134, 138-139, 153 A. 2d 477, 479-480 (1959): ‘ [T]he evidence presented must be such that by reasoning from it, without resort to prejudice or guess, a jury can reach the conclusion sought by plaintiff, and not that the conclusion must be the only one which logically can be reached. . . ” Eldridge v. Melcher, 226 Pa. Superior Ct. 381, 387, 313 A. 2d 750, 754 (1973). As the jury might reasonably have found that a railroad crossing accident was one of the hazards which made the placement of the booth negligent, and that the accident which actually occurred was a harm proceeding from that hazard, we cannot say on appeal that the hazard which rendered the placement of the booth negligent was unrelated to the harm which appellee, Noon, suffered.

Even though appellant’s conduct was negligent, appellant can only be liable to Noon for Noon’s injuries if its negligence was the proximate or legal cause of those injuries. Pennsylvania now follows the rules on legal cause set forth in the Restatement of Torts 2d, §§431 and 432. Whitner v. Lojeski, 437 Pa. 448, 263 A. 2d 889 (1970). Section 431 provides that “[t]he actor’s negligent conduct is a legal cause of harm to another if

(a) his conduct is a substantial factor in bringing about the harm, and

(b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm.” Section 432(1) provides that “[ejxcept as stated in Subsection (2) [dealing with concurrent forces, each of which alone is sufficient to produce the harm], the actor’s negligent conduct is not a substantial factor in bringing about harm to another if the harm would have been sustained even if the actor had not been negligent.” Thus, under Sections 431(a) and 432(1), in order for appellant’s negligence to be proximate cause of Noon’s injuries, it must first be found to be a factual cause of those injuries.

Although there is some confusion on this point in appellant’s brief,⁴ it appears that appellant contends that the negligent location of the telephone booth was not a factual cause of appellant’s injuries. Appellant contends that Noon’s injuries would have occurred even if it had exercised due care in the location and construction of the telephone booth. While it is hypothetically possible that Noon might have been struck by Knavel’s car even if the telephone booth had been located slightly farther from the grade crossing, the jury might reasonably have found that Noon would not have been injured at all had the appellant exercised due care in positioning the booth. It appears that if the booth had, for example, been placed inside the service station, as suggested at one point by Noon’s expert witness, Noon would not have been injured at all.⁵ Moreover, Comment b to §432(1) indicates that “this Subsection is most frequently, although not exclusively, applicable where the actor’s tortious conduct consists in a failure to take some precautions which are required for the protection of another’s person or land or chattels. In such case, if the same harm, both in character and extent, would have been sustained even had the actor taken the required precautions, his failure to do so is not even a perceptible factor in bringing it about and cannot be a substantial factor in producing it.” (Emphasis supplied.) It was not unreasonable for the jury to decide that, had the booth been located in another, safer, location, either Noon would not have been injured, or he would not have sustained injuries of the same character and extent. Therefore, we cannot now say that appellant’s negligence was not a cause in fact of Noon’s injuries.

Appellant next contends that, even if its negligence was a cause in fact of Noon’s injuries, several events leading up to the accident were so highly extraordinary as to constitute superseding causes of the accident. Appellant cites the Restatement of Torts 2d, §440, which defines a superseding cause as “an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.” It does not appear that any of the factors listed by appellant would amount to a superseding cause either under the Restatement or under Pennsylvania law.

First, appellant argues that Knavel’s various acts of negligence in driving a defective car, driving after drinking, and failing to take appropriate preventive action when he discovered that his car was going out of control amount to a superseding cause of appellant’s injury. Note, however, that under the theory of this case appellant was negligent because it failed to take reasonable precautions to protect its business invitees against harm inflicted by vehicles driven by third persons.⁶ Section 449 of the Restatement of Torts 2d, provides that “[i]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” (Emphasis supplied.) See Glass v. Freeman, 430 Pa. 21, 240 A. 2d 825 (1968) and DeMaine v. Brillhart, 224 Pa. Superior Ct. 241, 303 A. 2d 506 (1973), applying this section as the law of Pennsylvania. As appellant was under a duty to exercise reasonable care to protect Noon from the accidental, negligent, or reckless acts of drivers, the fact that a particular driver happened to act negligently or recklessly should not serve to prevent it from being liable for the consequences of the breach of that duty. Thus, Knavel’s negligence could not amount to a superseding cause of Noon’s injuries.

In regard to the intervening acts of persons other than Knavel, appellant cites the Restatement of Torts 2d, §447, which provides in part that “ [t] he 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 . . .

(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 . . . .” (Emphasis supplied.) Appellant’s citation of this section is puzzling, as none of the actors except appellant and Knavel were found to be at all negligent in this action. However, even assuming that the actions of Allison, the Baltimore and Ohio Railroad, and other actors were negligent, it is hard to say that their actions were “highly extraordinary,” viewed at the time when those actions were taken. Thus, it was not highly extraordinary for Allison to make an inadequate temporary repair to Knavel’s car’s brake system when Knavel, who lived two blocks away, approached him late at night and when Allison lacked parts to make a permanent repair. It was not highly extraordinary for the Dale Borough police officer to pursue Knavel when he observed Knavel riding through their town with his car out of control. Nor was it highly extraordinary for the locomotive engineer to be unable to prevent a collision when Knavel’s car hurtled towards the grade crossing, out of control, at approximately 70 miles per hour. See White v. Rosenberry, 441 Pa. 34, 271 A. 2d 341 (1970), on the application of this principle.

It appears that appellant’s real claim is that the exact manner in which this particular accident occurred could not have been foreseen by a reasonable man in appellant’s position. But this has never been a requirement of the law of negligence. As Mr. Justice Holmes long ago stated, “It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.” Munsey v. Webb, 231 U.S. 150, 156, 34 S. Ct. 44, 45 (1913). In Pennsylvania, it has long been held to be reversible error to instruct a jury that, in order to be negligent, the defendant must have been able to foresee the particular accident which in fact occurred. Shipley v. Pittsburgh, 321 Pa. 494, 184 A. 671 (1936). In accord is §435 (1) of the Restatement of Torts 2d, which states that “[i]f the actor’s conduct is a substantial factor in bringing about harm to another, the fact that the actor neither foresaw nor should have foreseen the extent of the harm or the manner in which it occurred does not prevent him from being liable.” (Emphasis supplied.)

Although appellant is correct is stating that it can only be liable for foreseeable harm, its argument in this case is based on a misapplication of the foreseeability standard. First, appellant asks us to usurp the jury’s function in determining what is foreseeable when reasonable men might disagree, contrary to our Supreme Court’s recent statement that “[w]hat 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, supra, at 75, 305 A. 2d at 43. Second, appellant asks us to determine whether the happening of this particular accident was foreseeable, whereas the test under negligence law has always been whether the hazard of accidents of this general type was foreseeable.

The jury below was justified in finding that appellant’s negligence was the proximate cause of appellee Noon’s injuries, and the court below did not err in refusing to grant a judgment n.o.v.

II

Appellant argues that if it is not entitled to j udgment n.o.v., it is, in the alternative, entitled to a new trial.

Appellant first contends that two computer printouts of summaries of accidents, reported to the Commonwealth’s Department of Transportation, which occurred in the vicinity of the accident site, were inadmissible hearsay. Appellant contends that although the records might otherwise be admissible under the Uniform Business Records as Evidence Act of May 4, 1939, P.L. 42, No. 35, §§1 and 2, 28 P.S. §§91a and b, they were inadmissible because the persons who entered the accident reports were not necessarily witnesses to the accidents therein reported, nor were the reports prepared under the direction or control of such witnesses. Appellant contends that these reports were, therefore, inadmissible hearsay, citing Haas v. Kasnot, 371 Pa. 580, 92 A. 2d 171 (1952). Noon had these printouts admitted into evidence out of order so that Theresa Napoli, a Division Chief in the Pennsylvania Department of Transportation, could be present to authenticate them. Noon’s attorney at that time believed that Jackman, his expert witness, would rely on them as the basis of his opinions. When it appeared that Jackman would not rely on this evidence, and that several of the defendants had objections to its admissibility, Noon, the original proponent of the evidence, moved that it be withdrawn from evidence. Appellant, however, objected to this withdrawal from evidence. As appellant objected to a motion in the trial court which might have served to cure this alleged defect, he cannot complain of it on appeal.

Second, appellant contends that the lower court erred in failing to grant a new trial as to Noon’s case against Ned J. Allison, trading as Allison’s Service Station. Appellant contends that the judgment in favor of Allison was against the weight of the evidence. “The grant of a new trial is within the sound discretion of the trial judge, who is present at the offering of all relevant testimony . . .”; an appellate court will reverse that decision “if it determines that [the lower court] acted capriciously or palpably abused its discretion.” Austin v. Ridge, 435 Pa. 1, 4, 255 A. 2d 123 (1969). “A new trial should be awarded on the ground that the verdict is against the weight of the evidence only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Burrell v. Philadelphia Electric Company, 438 Pa. 286, 289, 265 A. 2d 516 (1970). Appellant contends that certain statements by Allison to the effect that he made an “improper repair” on Noon’s car constituted a complete and binding admission of liability in this action. A juror might reasonably have concluded that although the repair which Allison made on Knavel’s brakeline would not equip Knavel’s car to pass inspection or drive cross country, but nevertheless have believed that the repair was sufficient to allow Knavel safely to traverse the two blocks to his home.⁷ Moreover, even if the jury believed that Allison had been negligent in making the repair, it might have concluded that a faulty repair made to serve for a two-block trip was not the proximate cause of an accident occurring after miles of highway driving.

Finally, appellant contends that the testimony of one witness to the effect that Knavel did not have insurance requires that a new trial be granted. However, the answer came out on cross-examination by appellant’s own attorney,⁸ and appellant cannot now object to its admission as error. In Tuttle v. Suznevich, 394 Pa. 614, 145 A. 2d 534, 149 A. 2d 888 (1958), a reference to insurance also came out on cross-examination by the appellant. The Supreme Court, per Justice Musmanno, refused to grant the appellant a new trial, stating that “ [b] efore putting his question, cross-examining counsel might well have taken counsel of Proverbs, 26:27: ‘Whoso diggeth a pit shall fall therein; and he that rolleth a stone, it will return upon him.’ ” 394 Pa. at 621, 149 A.2d at 891. The court immediately instructed the jury to disregard the answer, if they heard it.

Judgment of the lower court is affirmed.

1 . Although this problem may be considered a separate element of the cause of action for negligence, it is often treated as an aspect of the problem of legal or proximate cause. See Comment h to §281 (b).

2 . Although objection was made in the court below to the conclusional form of the expert witness’s statements, this issue has not been raised on appeal.

3 . After the expert witness delivered the statement on which appellant now bases this part of its appeal, appellant’s counsel asked that it be stricken as usurping the function of the jury.

4 . Thus appellant states that “[a]lthough the location of the phone booth certainly was a factual cause of the injuries to the Plaintiff, it was not the legal cause.”

5 . Appellant’s agent also testified that telephone booths at certain locations are protected by four- or five-inch steel bumper posts; no such posts were used to protect the booth involved in this case.

6 . Restatement .of Torts 2d, §344, provides that “[a] possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to he done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.” Comment (b) indicates that this section includes “persons outside of the land whose acts endanger the safety of the visitor.” This section has been followed in Glass v. Freeman, 430 Pa. 21, 240 A. 2d 825 (1968) (child drove unattended tractor, which struck invitee) and Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A. 2d 875 (1968) (firecracker exploded in theater rest room).

7 . Although Allison did not know Knavel’s exact address, he knew that he lived within the small village of Alum Bank.

8 . “Q. [by attorney for the appellant] : Did you ever find out the name of that driver?

“A. Knavel; because I went to see'him about the damage, the jack, etc. I thought he had insurance and he didn’t have.”