Brusis v. Henkels

• Decision Date: 11 January 1954
• Parties: BRUSIS v. HENKELS et al. STATES v. HENKELS et al.
• Court: Pennsylvania Supreme Court

102 A.2d 146

376 Pa. 226

BRUSIS v. HENKELS et al.

STATES v. HENKELS et al.

Supreme Court of Pennsylvania.

January 11, 1954

Owner and driver of tractor-trailer brought actions against partners, who had installed gas pipe in trench along berm of highway, for injuries sustained by driver and for damage to tractor-trailer when driver saw automobile parked partially on highway at curve and drove onto berm where tractor-trailer sank into soft mud caused by excavation of partners and ran into utility pole in berm, on ground that partners were negligent in allegedly failing to place signs to warn of soft shoulders. The Court of Common Pleas No. 6 (Tried in C.P. No 4) of the County of Philadelphia, as of December term, 1949 No. 2971, and the Court of Common Pleas No. 5 (Tried in C.P No. 4) of the County of Philadelphia as of September term 1949, No. 4633, Charles L. Guerin, J., entered judgments, and the partners appealed. The Supreme Court, Bell, J., at Nos. 199 and 200, January term, 1953, held that evidence was insufficient to establish that alleged negligence of partners was the proximate cause of the accident.

Judgments reversed and judgments entered for partners notwithstanding verdicts.

Musmanno, J., dissented.

John Paul Erwin, Perry S. Bechtle, George D. Sheehan, Philadelphia, for appellants.

Thomas Z. Minehart, Charles A. Rothman, Melvin Alan Bank, Philadelphia, for appellees.

Before STERN, C. J., and STEARNE, JONES, BELL, CHIDSEY, MUSMANNO and ARNOLD, JJ.

BELL Justice.

This involves two actions in trespass, arising out of the same accident, which were consolidated for trial before a judge and jury. One suit was brought by the operator of a tractor-trailer for personal injuries sustained by him, and the other by its owner for damages to the vehicle. In the latter action, defendants joined the operator as an additional defendant. Verdicts were rendered in favor of both plaintiffs. A third verdict was also rendered in favor of the operator as the additional defendant in the owner's case. Defendants filed motions for judgment n.o.v. and new trial, which were dismissed by the Court en banc. From the judgments entered on the verdicts, defendants now appeal.

Taking the evidence in the light most favorable to plaintiffs, and resolving all conflicts in the evidence in their favor, as we must where a defendant is seeking judgment non obstante veredicto, the facts may be thus summarized:

Plaintiff Brusis was operating on November 4, 1949 at about 12:30 o'clock A. M. a tractor-trailer owned by plaintiff States in an easterly direction on Street Road, Bucks County, Pa. The vehicle at its widest point was 7 1/2 feet wide and 42 to 45 feet long over all. The gross weight of the loaded vehicle was 30,500 pounds.

Street Road is a macadam paved highway 18 feet in width bounded on each side by dirt shoulders or berms. Brusis was traveling at a speed of about 25 miles an hour as he approached a curve bearing to his left. When 100 to 150 feet from the curve, he saw an automobile without lights parked at the curve partly on the paved portion of the highway and partly on the south shoulder. Brusis swung the tractor-trailer to the left and in passing the car, drove off the road onto the berm on the north or left side and immediately felt the left front wheel of the tractor sink in the shoulder, which he said was soft mud. The left front wheel started to sway and swing. Brusis, trying to get off the berm, kept his foot on the gas for a distance of approximately 50 feet when he crashed into a utility pole on the berm, with the result that the tractor-trailer turned over and Brusis was injured. The defendants, in order to install a 10 inch gas pipe, had been excavating and back filling a trench along the north berm of Street Road for a distance of about 8 miles. The trench was 18 inches wide and the southern edge was 15 inches to 2 feet north of the paved portion of the highway. The trench had been properly filled in by defendants 30 days prior to the accident. Plaintiff's witness, who was in charge of this work for the Commonwealth, testified that defendant had placed (a) ‘ Road under Construction’ signs along the entire route, and (b) signs along this 8 mile highway every 200 feet with the words ‘ Soft Shoulders' printed thereon, so that they could be easily seen by vehicles approaching on the right side of the road where the pipe was laid. This evidence must be disregarded because the plaintiff himself said he saw no signs. The paved portion of Street Road has a white center line which divides the highway for eastbound and westbound traffic and is, we repeat, 18 feet in width. Even if the parked car had not been parked partly on the berm, it would have left ample space for a carefully driven tractor-trailer to pass by on the other side of the macadam paved highway.

‘ * * * ‘ The mere happening of an accident is no evidence of negligence. * * * Plaintiff has the two-fold burden of proving that the defendant was negligent and that his negligence was the proximate cause of her accident. * * *’ ' Lanni v. Pennsylvania R. Co., 371 Pa. 106, 109, 88 A.2d 887, 888.

It had rained all day. Brusis was an experienced driver. There was nothing to prevent him from seeing the parked automobile as soon as it came within range of his lights. He admits he saw it when he was 100 to 150 feet away from it, and at that time he was driving at a speed of 25 miles an hour. He could easily have stopped his car, or he could have slowed down, or he could have continued at 25 miles an hour and in either case easily have driven past the parked car, on the paved highway . He did none of these. He had a minimum of 11 feet of paved highway on which he could with reasonable care have easily driven his tractor-trailer. He either carelessly or deliberately drove off the paved highway onto the soft shoulders or berm which he knew was wet from an all day rain.

Even if we assume that some signs, warning of soft shoulders, were necessary in the exercise of due care and that none were erected at the place of the accident so as to be visible to a driver traveling in a westerly direction, plaintiffs failed to prove that defendants owed and breached any duty as to them; Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289; Restatement of the Law of Torts, American Law Institute-Negligence, Chapter 12, § 281, page 735; Rockey v. Ernest, 367 Pa. 538, 80 A.2d 783.

In Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289, supra, the plaintiff was injured when an automobile operated by defendant struck and killed a man on a highway, whose body was hurled through the air striking and injuring plaintiff, who was lawfully on the highway behind a bus from which she had alighted. This Court sustained a nonsuit, holding that defendant owed a duty solely to those whom a reasonable man might foresee might be injured by driving an automobile 35 miles per hour past a bus which was standing on the opposite side of the road. The Court said, 368 Pa. at page 425, 84 A.2d at page 290: ‘ * * * Negligence is defined as the absence of care under the circumstances: Beck v. Stanley Co. of America, 355 Pa. 608, 50 A.2d 306; Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 100, 59 A.L.R. 1253. The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act: Scurfield v. Federal Laboratories, Inc., 335 Pa. 145, 6 A.2d 559. In Palsgraf v. Long Island R. Co., supra, it was stated by Cardozo, C. J. (later Justice, United States Supreme Court): ‘ * * * the orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty.’ '

In the Restatement of the Law of Negligence, the law is thus stated (page 735): ‘ Comment on Clause (b): c. Risk to class of which plaintiff is member. If the actor's conduct creates a recognizable risk of harm only to a particular class of persons, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured.'

‘ * * * It is well settled that conduct is negligent...