Dahlstrom v. Shrum
| Decision Date | 13 November 1951 |
| Citation | 84 A.2d 289,368 Pa. 423 |
| Parties | DAHLSTROM et ux. v. SHRUM. |
| Court | Pennsylvania Supreme Court |
Action of trespass by Carl Dahlstrom and Ruth E. Dahlstrom against Robert M. Shrum for injuries received by plaintiff Ruth Dahlstrom when an automobile owned and operated by defendant struck and killed a third party whose body in turn was hurled through the air striking plaintiff. The Court of Common Pleas of Westmoreland County, at No. 496, August Term, 1950, John M. O'Connell, J., granted defendant's motion for a compulsory nonsuit and entered judgment for defendant and plaintiffs appealed. The Supreme Court, No. 157, March Term 1951 Stearne, J., held that where decedent crossed behind passenger bus to reach opposite side of highway and was struck by defendant's oncoming automobile and defendant was not aware of plaintiff's presence behind bus and could not foresee that decedent would be passing behind bus and stepping into oncoming lane of traffic plaintiff was outside orbit of risk and therefore no right of plaintiff was invaded and defendant breached no duty which he owed to plaintiff and even if defendant were negligent with respect to decedent no negligence existed as to plaintiff because it could not foresee that the decedent's body would strike plaintiff.
Judgment affirmed.
Foreseeability has no place in consideration of proximate or legal cause but is an element when question of negligence is being considered.
Thomas P. Nee, Monessen, Louis Vaira, Pittsburgh for appellant.
Paul M. Robinson, Greensburg, for appellee.
Before DREW, C. J., and STERN, STEARNE, JONES, BELL, LADNER and CHIDSEY, JJ.
Plaintiff, Ruth Dahlstrom, with her husband, brings this action of trespass against defendant, Robert Shrum, for injuries received when an automobile owned and operated by defendant struck and killed one Gus Davorack, whose body in turn was hurled through the air striking plaintiff. Defendant moved for a compulsory nonsuit which the court below granted because plaintiff failed to produce evidence that defendant was negligent. Judgment was entered for defendant. Plaintiff appealed.
Viewed in the light most favorable to the plaintiff, the facts are as follows. On July 26, 1948, at approximately 10:00 p. m., a clear, dry evening, plaintiff boarded a bus at Irwin, Pennsylvania, to travel to Hahntown, which is a sparsely settled village with no sidewalks or street lights. Upon arrival at Hahntown the bus, heading north, stopped in the proper right hand lane of the eighteen foot two lane highway to permit Gus Davorack and plaintiff to alight. Gus Davorack then proceeded around the back of the bus followed at or about three or four feet by plaintiff. As he reached about the middle of the left hand lane, Gus Davorack was struck by defendant's car, traveling south, as it was passing the bus. Deceased's body struck plaintiff causing her serious injuries. When plaintiff was struck she was behind the bus, unable until the last second to see defendant's car. Defendant, called as on cross examination, stated that he was unable to ascertain whether the vehicle he was about to pass was a truck or bus. He was only able to see three small lights in addition to the head lights. He testified that he was partially blinded as he passed the bus. A State policeman testified that, at the time of the accident, defendant told him that he was traveling approximately thirty-five miles per hour.
The plaintiff sought to locate the accident at a T intersection, thereby attempting to place a higher duty of care upon the defendant than if the accident had occurred between intersections. Defendant testified, however, that his eyes were partially blinded before he passed the bus which was stopped near the T intersection. It necessarily follows that the intersection could not be seen by the defendant.
In order for the plaintiff to secure the striking off of the compulsory nonsuit, it is necessary that she establish by proper evidence that she was harmed by defendant's negligence. Negligence is defined as the absence of care under the circumstances: Beck v. Stanley Company 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.’ Also: ‘ The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.’
Defendant owed a duty to refrain from injuring persons by an unreasonable or careless use of his automobile. But he owed that duty solely to those whom a reasonable man could foresee he might injure by a particular use of this automobile which, in this case, he was driving at thirty-five miles per hour, passing a vehicle with three small lights above its headlights. Was plaintiff within that group of people to whom a reasonable man could foresee an injury under these circumstances? We think not.
Defendant knew he was approaching a small, sparsely settled village, with no sidewalks and no street lights and late in the evening. He could expect few, if any, persons to be in or about the village street. As he traveled through the village at thirty-five miles per hour, he noticed a motor vehicle standing still with a pair of headlights and three small lights above. It cannot be sad that defendant as a reasonable man should, as matter of law, then have been aware that the vehicle he saw was a passenger bus. Defendant, called as on cross examination, testified that he constantly had his eyes fastened upon the road. As defendant started to pass the vehicle, plaintiff and deceased were not visible and there was no warning that decedent and plaintiff were behind the bus. As defendant approached and passed the bus he was partially blinded by the glare of the headlights of the bus. Even if defendant had been aware that the vehicle was a bus, such fact in itself is no indication that two persons were in back of the bus. Had the two passengers crossed in front of the bus, as they should have, and where defendant could have seen them for the entire length of time it took them to walk across one lane of the road into the lane which the driver occupied,...
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