Brazel v. McMurray

• Decision Date: 02 May 1961
• Citation: 171 A.2d 151,404 Pa. 188
• Parties: William BRAZEL v. Robert L. McMURRAY and Stanley Buchanan. Appeal of Stanley BUCHANAN.
• Court: Pennsylvania Supreme Court

Page 151

171 A.2d 151

404 Pa. 188

William BRAZEL v. Robert L. McMURRAY and Stanley Buchanan Appeal of Stanley BUCHANAN.

Supreme Court of Pennsylvania.

May 2, 1961.

Rehearing Denied June 22, 1961.

Cyril T. Garvey, Evans & Garvey, Sharon, for appellant.

William J. Joyce, Martin E. Cusick, Wiesen, Cusick, Madden, Joyce, Acker & McKay, Sharon, for appellee.

Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK and EAGEN, JJ.

MUSMANNO, Justice.

The night of March 27, 1954, was a fateful one for William Brazel, the plaintiff in this case. Leaving his home in Sharon, where he had worked during the day, he boarded a bus for Farrell with the intention of witnessing a basketball game to be played in the high school of that town. Arriving in Farrell he stopped in at a beer garden about 7:45 p. m., to refresh himself with a bottle or two of beer. Here he learned that no tickets were available for the game. Apparently as fond of beer as he was of basketball he made no attempt to get to the high school and remained where he was, enjoying his favorite beverage. It was a rule at the beer garden that just before closing time one could purchase extra bottles and consume them on the premises. This gave Brazel occupation until 2 a. m., when he left to catch a bus returning him to Sharon.

To reach the bus stop he walked in an eastward direction along Route 418. The area being a rural one, no sidewalks flanked the highway so he took to the open road, keeping, however, some 2 or 3 feet away from the berm. Although not staggering, his pace was an unsteady one and when he reached a point close to the intersection of Route 418 with Pine Hollow Boulevard in Hickory Township, Mercer County, he stepped into the path of a car traveling also in an eastward direction. The driver of the car attempted to avoid him by swinging sharply to his right but the maneuver was unsuccessful. The left front of the car hit the plaintiff and when the car came to a stop the front end was in a ditch on the southern side of the highway, and the rear end angled out into the highway, forming a barrier across the eastbound lane.

The operator of the car, Robert L. McMurray, and a guest passenger, J. J. Phillips, hurried to the body of the pedestrian lying inertly in the road some 4 or 5 feet to the left of the rear end of the car. Although undoubtedly injured, Brazel was conscious and exhibited no bleeding. While McMurray went to a neighbor's house to telephone for an ambulance, Phillips moved back some one hundred feet on the highway with a flashlight in his hand to warn all cars traveling eastwardly of the injured man on the road and the car blocking the southern half of the highway.

Four or five cars heeded his signalling and drove around the obstructions, but one car (ascertained later to be driven by Stanley Buchanan) ignored his warnings and dashed toward him at 55 to 60 miles an hour. When it became apparent to Phillips that Buchanan did not intend to stop, now being only 20 feet away, he leaped aside and the car continued unabatedly ahead, striking the McMurray car with undiminished velocity and skidding 102 feet before it came to a stop. When the violence subsided, the McMurray car was found to have been completely spun around and the body of William Brazel was found twenty feet further to the east from its first resting place, and it was now bleeding.

Brazel brought actions in trespass against both McMurray and Buchanan. At the trial the Court, after the plaintiff had produced his evidence, entered a compulsory non-suit in the action against McMurray. The trial then proceeded to verdict and the jury awarded the plaintiff $8,000 in his suit against Buchanan.

Buchanan moved for judgment n. o. v. and for a new trial. Both motions were refused and Buchanan appealed.

It is the appellant's contention that the plaintiff came to grief because of his drunken condition and that, therefore, he was guilty of contributory negligence as a matter of law. This contention is based on the supposition that the double striking of the plaintiff constituted a single episode and that if McMurray was excused from liability because Brazel stepped in front of his car, Buchanan should also be immune from liability since it was Brazel's intoxication which led to his being injured by Buchanan. This supposition would make of the unhappy occurrence on Route 418 one continuing, uninterrupted, event. The facts, as determined by the jury, were otherwise.

When McMurray's car plunged into the ditch, following the collision with Brazel, the first accident ended. The cord of continuity broke with the finality of irreparable severance. Thus, when Buchanan came speeding into the scene it was not for him to determine whether he should slacken his pace or not, depending on how the body on the highway got there. He had a duty to avoid striking that body regardless of the cause which carried it there.

Whether Brazel was stretched out on the highway because he had fainted from illness, had been hit by another car, or fell there in a drunken stupor was immaterial so far as Buchanan's responsibility was concerned. It was his duty to have his car under such control that he could by diverting his course of travel or by stopping avoid striking a human body lying before him in his path of travel, especially since so large an object as a wrecked car was within his immediate line of vision. A helpless human being on the highway is entitled to protection from motorists whether he be a hopeless dipsomaniac or a model of sobriety.

Whatever contributory negligence Brazel was guilty of in the first automobile encounter did not carry over to the second encounter because, contrary to Buchanan's argument, there actually were two untoward happenings. The legal infirmity of contributory negligence in any specific happening ends when the forces which combined to produce an accident and injury have spent themselves, and quiescence, no matter of what duration, has set in. In this case five minutes intervened between the first striking and the second striking, but even if the interval had been of a shorter period of time, Brazel could still not be charged with negligence contributing to the second striking. So far as Buchanan is concerned, he entered on to the stage of events as an actor in a play wholly different from the one which had already ended with the curtain falling on Brazel's lying motionless in the highway.

Brazel's beer drinking was not a juridical cause of the second accident, and, therefore, cannot operate to exempt Buchanan from the result of his negligence which was ample, almost wanton. He was driving in excess of the speed limit, he ignored a warning which was obviously one of import and gravity, and he paid no attention to objects which had he been alert he could not help but see, namely, the signalman with the flashlight, the car athwart his path of travel, and the body lying in the roadway. When he was asked by Phillips why he didn't stop after seeing the warning signal, Buchanan replied: 'I don't stop for anybody with a flashlight in the middle of the night.'

Although McMurray was relieved of any liability toward Brazel because Brazel was guilty of contributory negligence in the first accident, the principle of law involved in a case of this character was well expounded in Kline v. Moyer and Albert, 325 Pa. 357, 364, 191 A. 43, 46, 111 A.L.R. 406, where this Court said:

'Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause. Where, however, the second actor does not become apprised of such danger until his own negligence, added to that of the existing perilous condition, has made the accident inevitable, the negligent acts of the two tort-feasors are contributing causes and proximate factors in the happening of the accident and...