Leposki v. Railway Express Agency, Inc., 13634.

• Decision Date: 15 January 1962
• Docket Number: No. 13634.,13634.
• Citation: 297 F.2d 849
• Parties: Richard LEPOSKI, Jr., a Minor by Richard Leposki, His Guardian, Robert Leposki, a Minor, by Richard Leposki, His Guardian, Delores Leposki, in Her Own Right, Delores Leposki and Richard Leposki, in Their Own Right, Appellants, v. RAILWAY EXPRESS AGENCY, INC.
• Court: U.S. Court of Appeals — Third Circuit

297 F.2d 849 (1962)

Richard LEPOSKI, Jr., a Minor by Richard Leposki, His Guardian, Robert Leposki, a Minor, by Richard Leposki, His Guardian, Delores Leposki, in Her Own Right, Delores Leposki and Richard Leposki, in Their Own Right, Appellants, v. RAILWAY EXPRESS AGENCY, INC.

No. 13634.

United States Court of Appeals Third Circuit.

Argued December 5, 1961.

Decided January 15, 1962.

Jerome R. Balka, Philadelphia, Pa., for appellants.

Joseph H. Foster, Philadelphia, Pa. (White and Williams, Philadelphia, Pa., on the brief), for appellee.

Before GOODRICH, STALEY and GANEY, Circuit Judges.

STALEY, Circuit Judge.

In this negligence action for personal injuries and damage to property, a verdict was returned for defendant, and plaintiffs appeal, contending that the district court erroneously charged the jury. Jurisdiction was based on diversity of citizenship, and Pennsylvania law applies.

The facts are not in dispute. On December 5, 1956, a driver making deliveries for the defendant Railway Express Agency, Inc., parked a truck near the curb and against traffic on Righter Street in Philadelphia. The parked truck faced uphill and pitched in towards the curb, with the gasoline tank intake pipe located near the center of the left side. The result was that gasoline dripped out from the top of the pipe into the gutter. While playing nearby, two young boys saw the gasoline and one of them dropped a lighted match into the gutter beneath the pipe, where the gasoline caught fire. After unsuccessfully attempting to extinguish the fire, the driver called the fire department, moved the truck, and stopped in front of plaintiffs' home. Flames and gasoline spread to the house, causing property damage and personal injuries to plaintiffs.

The boys are not parties to this action. One of the defenses raised was that the boy's act in igniting the gasoline constituted an independent intervening act that superseded defendant's negligence. In this regard, the district court charged the jury:

"Assuming, however, you do find that the defendant was negligent, before you can even then arrive at a verdict for the plaintiffs, you next ask yourself the question — Should the defendant be excused from liability to the plaintiffs by the intervening act of the boy in igniting the gasoline as he did? Could the defendant reasonably foresee that this might happen? That is, that the children would come along, see the fluid, and light it to see whether it would burn? Could it have been anticipated by the defendant? If you decide that it could, you may find for the plaintiffs. If it could not have been anticipated or foreseen, your verdict should be for the defendant."

We agree with plaintiffs that this part of the charge was incorrect and that their motion for a new trial should have been granted.¹

In Pennsylvania, an intervening negligent act by a third person does not, in all cases, constitute a superseding cause relieving an antecedent wrongdoer from liability for negligently creating a dangerous condition. The act is superseding only if it was so extraordinary as not to have been reasonably foreseeable. Stark v. Lehigh Foundries, Inc., 388 Pa. 1, 130 A.2d 123 (1957); Smith v. Cohen, 116 Pa.Super. 395, 176 A. 869 (1935). The extraordinary nature of the intervening act is, however, determined by looking back from the harm or injury and tracing the sequence of events by which it was produced, Restatement, Torts § 440, comment b (1934), cited with approval in Diehl v. Fidelity-Philadelphia Trust Co., 159 Pa.Super. 513, 49 A.2d 190 (1946); Restatement, Torts § 442, comment b (1948 Supp.); Restatement, Torts, Pa.Ann. § 442(b), i. e., the events are viewed retrospectively and not prospectively.²

The considerations important in determining whether an intervening force is a superseding cause are clearly set forth in Section 442 of the Restatement of the Law of Torts. The district court's charge, viewed by this standard, was clearly misleading. Whether an intervening act constitutes a superseding cause is a question that is more readily resolved in hindsight, and that which appears to be extraordinary in the abstract may prove to be...