Whitner v. Von Hintz
| Decision Date | 25 March 1970 |
| Citation | 437 Pa. 448,263 A.2d 889 |
| Parties | Louis A. WHITNER, Appellant, v. Margaret L. VON HINTZ and Stanley Lojeski. Dorris S. EVANS, Administratrix of the Estate of Gerald Evans, Deceased v. Stanley LOJESKI and Louis A. Whitner. |
| Court | Pennsylvania Supreme Court |
George M. Bush, Doylestown, Norvin Nathan, Bristol, for appellants.
James C. Bowen, Victor S. Jaczun Sellersville, Norvin Nathan, Bristol, Power, Bowen & Valimont, Sellersville, for appellee.
Before JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
At approximately nine o'clock in the evening on April 9, 1962, an automobile owned and operated by Louis Whitner (appellant herein) was struck from behind by a second car driven by Stanley Lojeski. The impact occurred between the right front of the Lojeski vehicle and the left rear of the Whitner automobile. At the time of the accident, both cars were traveling south on Route 309, a three-lane highway in Bucks County. The car driven by Lojeski was owned by Margaret Von Hintz, and Gerald Evans was a passenger in the right front seat of the Lojeski automobile.
As a result of the accident, two suits in trespass were filed. Whitner filed suit against Lojeski and Von Hintz seeking damages for personal injuries, loss of earnings, and property damage. Evans brought suit against Whitner and Lojeski claiming damages for personal injuries and loss of income; following Evans' death in January, 1965, his wife, as administratrix of his estate, was substituted as plaintiff and continued to prosecute the action. The two actions were consolidated and jointly tried in the Common Pleas Court of Bucks County. In the Whitner suit, the court entered an involuntary non-suit in favor of Von Hintz upon her motion, and the jury returned a verdict against Whitner and in favor of the remaining defendant Lojeski. In the Evans suit the jury returned a verdict of $12,000 in favor of the Evans estate and against Whitner and in favor of Lojeski. Lojeski thus was relieved of liability in both cases. Both Whitner and Evans filed motions for new trial; both motions were denied after argument. The appeals now before us were taken by Whitner from the judgments subsequently entered on the verdicts.
The issues presented by these appeals are the validity of the lower court's charge to the jury on proximate and superseding cause. Resolution of these questions requires some review of the trial testimony.
At trial, the principal parties offered accounts of the events leading up to the accident which differed markedly in many particulars. Whitner, according to his account, had hoped to visit a gun shop located on the west side of Route 309 on the evening of the accident. Uncertain whether the store was open, Whitner drove north on Route 309, passing the shop on his left across the highway. Discovering that it was still open, he drove some two-tenths of a mile further north and there pulled off the road onto the shoulder opposite a motel. He checked for traffic, noticed a car roughly one mile away coming south toward him, and realizing he had ample time, he executed a U-turn. He then drove south until he again approached the shop in question, which was now on his right. Intending to stop but uncertain as to where he should park, Whitner slowed down and eased his car off the highway. When he was almost entirely on the berm at the side of the road, and while he was still attempting to decide where he would park, Whitner's car, according to his testimony, was struck from behind; the force of the collision caused it to roll over until it came to rest against a pole in front of the gun shop. Whitner estimated that at the time of the accident his car was roughly 90% On the berm of the road, although he acknowledged that his left rear wheel might still have been on the paved highway surface.
Lojeski's version of the accident as told at trial was as follows: Immediately before the accident, he was driving south on Route 309 at a speed of 45 to 50 miles per hour. Suddenly, the Whitner vehicle, which had been proceeding north on Route 309, executed a U-turn in front of his own car. Lojeski was not aware of the Whitner car until it passed in front of him at an angle roughly one car langth away, and he was uanble to avoid the collision because of the suddenness of Whitner's turn. Lojeski's version of the accident was confirmed in substance by Evans in a deposition taken before his death, parts of which were read into evidence at trial, and by Walter Gilliam, a second passenger in the Lojeski car who escaped the accident without injury, although both men's accounts differed from Lojeski's in several particulars, not of relevance here.
Given this marked conflict in testimony, the jury was obliged to assess the credibility of the witnesses and decide upon the sequence of events which it deemed authoritative; its further task was to determine the incidence of liability in accordance with the instructions of the court and in light of their prior factual determination.
The trial court in its charge explained to the jury the nature of the two suits and the reasons for their consolidation. He reviewed the evidence, defined negligence, and instructed the jury that the plaintiff was obliged to establish not only that a defendant was negligent but also that such negligence was the proximate cause of plaintiff's injury.
It is appellant's principal contention that the court's use of the so-called 'but for' test in its definition of proximate cause [1] was erroneous and that such error was prejudicial, for even if the jury had accepted appellant's version of the accident, they might nevertheless have found against him because of their misapprehension of the law.
As in all cases questioning the accuracy of a charge to the jury, we must not take the challenged words or passage out of the context of the whole charge, but must look to the charge in its entirety, against the background of the evidence in the particular case, to determine whether or not error was committed and whether that error was prejudicial to the complaining party. Wilson v. Pennsylvania Railroad Co., 421 Pa. 419, 422, 219 A.2d 666 (1966); James v. Ferguson, 401 Pa. 92, 97, 162 A.2d 690 (1960). So viewing the charge in the case at bar, we conclude there was no prejudicial error.
It is elementary that the liability of a defendant for injury or damages to another is predicated upon a connection between his negligent acts or omissions and the injuries sustained. That requisite connection is most commonly called 'proximate cause', [2] and few aspects of the law have proved more perplexing to the courts or provided greater employment to the commentators than the proper definition of this phrase. [3]
One could wish that the pronouncements of this Court on the subject over the years had been somewhat more lucid, more consistent, more forthright; had distinguished between cause in a factual or 'philosophic' sense [4] and proximate or legal cause; had acknowledged that the concept, like that of negligence itself, was designed not only to permit recovery for a wrong, but to place such limits upon liability as are deemed socially or economically desirable from time to time. Perhaps in so doing, one could have eliminated proximate cause as a separate concept, and accomplished the private and public purposes of this aspect of tort law by a definition of negligence which would combine the concept of legal cause with the foreseeability by the defendant (judged as a 'reasonable man') of the risk of harm created by his conduct. The issue of factual cause would be for separate determination by the trier of fact.
Be that as it may, we have a considerable body of law on the subject in Pennsylvania which cannot be ignored, and within it is to be found the so-called 'but for' rule, or, to use the well known Latin, the Sine qua non test, as one mode of giving expression to the concept of proximate cause. The genesis of the expression, at least in its present form, can be traced at least to Shearman and Redfield on Negligence, § 10. It was given currency by this Court in Burrell Twp. v. Uncapher, 117 Pa. 353, 363, 11 A. 619, 621 (1887), where the test was quoted as follows:
"If the defendant's negligence concurred with some other event (other than the plaintiff's fault) to produce to plaintiff's injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time."
See also Loughlin v. Pennsylvania R. Co., 240 Pa. 174, 87 A. 294 (1913); Coyne v. Pitts. Railway Co., 393 Pa. 326, 336, 141 A.2d 830 (1958); Fehrs v. McKeesport, 318 Pa. 279, 284, 178 A. 380 (1935); Sciandra v. Shovlin, 418 Pa. 378, 381, 211 A.2d 437 (1965).
In seeking to determine whether specific conduct actually caused the harmful result in question, this test can be useful and is generally adequate, but it cannot be indiscriminately used as an unqualified measure of a defendant's liability. As it is stated in Burrell Twp. v. Uncapher, Supra, the rule is the obverse of the Restatement formulation as found in § 432(1):
'* * * (T)he 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.'
We think the Restatement formulation is preferable for three reasons: it speaks not just of defendant's 'negligence' which is subject to varying definitions, but to his 'negligent conduct,' which denotes the physical act or omission involved as well as the legal concept of negligence; it...
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