Cebulskie v. Lehigh Valley R. Co.
| Decision Date | 07 January 1971 |
| Citation | 272 A.2d 171,441 Pa. 230 |
| Parties | Edmund Joseph CEBULSKIE v. LEHIGH VALLEY RAILROAD CO., Appellant. |
| Court | Pennsylvania Supreme Court |
David S. Shrager, Donald J. Farage, Philadelphia, for appellee.
Before BELL, C.J., and JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appellee, Edward Cebulskie, was injured when the delivery truck he was driving went off a bridge maintained by the appellant railroad. Cebulskie brought an action of trespass alleging that the railroad was negligent in maintaining the bridge and that this negligence was the proximate cause of the accident.
At the trial the appellee testified that as he drove onto the bridge, the front wheels of his truck began to 'shimmy' when they went from the macadam highway onto the beginning of the bridge surface, which was a few inches lower; that almost immediately thereafter his left front wheel fell into a hole in the wooden planking, which caused the truck to veer sharply to its left, the steering wheel being wrenched from his grasp; that his vehicle then skidded along the surface made slippery by the effects of a slight drizzle on the wood preservative creosote, which was applied in and on the planks; and that the truck then went through the guardrail on the south side of the bridge.
Appellee admitted that he had known of the existence of the hole in the planking for some time prior to the accident. He testified that while on earlier occasions he would straddle the hole in order to avoid it, he was unable to do so on the day of the accident because there was an automobile coming across the bridge in the opposite direction forcing him to stay in the right-hand lane and thus preventing him from avoiding the hole. After a verdict for appellee, dismissal of appellant's motions for new trial and judgment n.o.v., and entry of judgment on the verdict, the railroad appealed.
The principal argument raised in the railroad's appeal is that the trial judge erred in instructing the jury no less than fifteen separate times that it should not consider contributory negligence unless it was a 'proximate cause' in the happening of the accident. The railroad concedes in its brief that on several occasions, pursuant to the railroad's requests, the trial judge charged the jury that appellee's contributory negligence would bar recovery even if that negligence contributed 'in the slightest degree' to the happening of the accident. However, it is the railroad's contention that the portion of the charge relating to 'proximate cause' was completely erroneous and highly prejudicial to its case.
Appellant bases its contention on the opinion of this court in Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957). However, the assertion in Crane v. Neal that the contributory negligence of the plaintiff need not be the proximate cause of his injury in order to bar recovery is inconsistent with prior Pennsylvania law on this subject. Kasanovich v. George, 348 Pa. 199, 34 A.2d 523 (1943), McFadden v. Pennzoil Company. 341 Pa. 433, 19 A.2d 370 (1941), Weir v. Haverford Elec. Light Co., 221 Pa. 611, 70 A. 874 (1908), and with subsequent law: Hamilton v. Fean, 422 Pa. 373, 221 A.2d 309 (1966), Brazel v. Buchanan, 404 Pa. 188, 171 A.2d 151 (1961). It is not surprising then that Dean Prosser refers to Crane v. Neal and its 'slightest degree' test as a 'rather curious abberration.' Apparently Crane v. Neal can be made consistent with other cases only on the grounds that the trial court in Crane failed to charge that contributory negligence, however slight the degree of negligence, would bar recovery, providing it was a proximate cause of the accident.
To summarize the law in Pennsylvania: A plaintiff cannot recover if his own negligence, however slight, contributes to the happening of the accident in a proximate way, i.e., the accident was the result of one of the risks, the creation of which had caused plaintiff's conduct to be labeled negligent.
This is the same relationship which must exist between a defendant's conduct and an accident for which he is held legally responsible.
As stated in Section 465(2) of the Restatement of Torts 2d:
'The rules which determine the causal relation between the plaintiff's negligent conduct and the harm resulting to him are the same as those determining the causal relation between the defendant's negligent conduct and resulting harm to others.'
Those cases which seem to imply that the 'slightest degree' test is in conflict with the proximate cause test, cases such as Crane v. Neal, Supra, and Carderelli v. Simon, 149 Pa.Super. 364, 27 A.2d 250 (1942), confuse the meaning of 'proximate cause.' Proximate cause does not refer to a degree of negligence. It describes a kind of causation, the kind to which legal responsibility attaches.
An excellent example of conduct which may be, in some sense, a 'cause' of an accident but is not a proximate cause for which legal responsibility attaches can be found in McFadden v. Pennzoil Company, Supra. The facts of that case are stated in the opinion, 341 Pa. at page 435, 19 A.2d at page 372 as follows:
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