Grainy v. Campbell

Citation425 A.2d 379,493 Pa. 88
PartiesThomas A. GRAINY, a minor, by Thomas F. Grainy and Dorothy A. Grainy, his parents and natural guardians and Thomas F. Grainy and Dorothy A. Grainy, in their own rights, Appellees, v. Bruce A. CAMPBELL, an individual, Turner Dairy Farms, Inc., a corporation, Charles G. Turner, an individual, Lydia C. Turner, an individual, Appellants, v. M. O'HERRON CO., a corporation and Peoples Natural Gas Company, a corporation, Appellees.
Decision Date04 February 1981
CourtUnited States State Supreme Court of Pennsylvania

Page 379

425 A.2d 379
493 Pa. 88
Thomas A. GRAINY, a minor, by Thomas F. Grainy and Dorothy
A. Grainy, his parents and natural guardians and
Thomas F. Grainy and Dorothy A. Grainy,
in their own rights, Appellees,
v.
Bruce A. CAMPBELL, an individual, Turner Dairy Farms, Inc.,
a corporation, Charles G. Turner, an individual,
Lydia C. Turner, an individual, Appellants,
v.
M. O'HERRON CO., a corporation and Peoples Natural Gas
Company, a corporation, Appellees.
Supreme Court of Pennsylvania.
Argued Oct. 1, 1980.
Decided Feb. 4, 1981.

Page 380

[493 Pa. 89] James E. Coyne, Weis & Weis, Pittsburgh, for appellants.

Robert E. Wayman, Pittsburgh, for M. O'Herron Co.

Harry Zimmer, Pittsburgh, for Thomas Grainy, et al.

John R. Kenrick, Pittsburgh, for Peoples Natural Gas Co.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

LARSEN, Justice.

This negligence action raises the question of whether an intervening negligent act of a second actor will discharge a first actor's liability for antecedent negligence.

[493 Pa. 90] In 1971, appellee M. O'Herron Co. (contractor) was replacing a gas pipeline for appellee Peoples Natural Gas Co. (gas company) along Saltsburg Road in Plum Township, Allegheny County. An uncovered excavation, which was barricaded with metal horses and dirt, obstructed the entire berm on the north side of Satlsburg Road.

Appellee Thomas A. Grainy, age 12, was in a single file line of Boy Scouts hiking eastbound on the berm of Saltsburg Road. These Scouts encountered the excavation. At the same time a truck with a trailer driven by appellant Bruce A. Campbell (truck driver) and owned by appellant Turner Dairy Farms, Inc. (truck driver's employer) was approaching the excavation westbound on the same side of the highway. When the truck driver was about three hundred feet away, he observed the approaching Boy Scouts and the excavation, and moved his truck partially over the double yellow center line of the two-lane highway since there was no on-coming traffic. One of the Scouts, observing that the truck had moved to accommodate their passage, proceeded around the excavation on the paved roadway and Thomas Grainy followed. Although there was no on-coming traffic, the truck driver moved back into the westbound lane as he passed the boys. Thomas Grainy was struck and thrown into the excavation, suffering severe injuries. This lawsuit ensued.

In the trial court the jury returned a verdict in favor of Thomas Grainy against the truck driver, his employer, the contractor, and the gas company. All defendants filed motions for judgment n. o. v. but these were denied.

The Superior Court affirmed the judgment against the driver and his employer but reversed the judgment against the contractor and gas company holding that the truck driver's intervening negligence discharged the liability of the contractor and gas company as a matter of law. Grainy v. Campbell, --- Pa.Super. ----, 409 A.2d 860 (1979). Petition for allowance of appeal was granted to resolve confusion in Pennsylvania case law as to when intervening negligence terminates liability for antecedent negligence.

[493 Pa. 91] The Superior Court held that Kline v. Moyer, 325 Pa. 357, 191 A. 43 (1937) (hereinafter cited as Kline) governed this case. In

Page 381

Kline the first actor left a broken down vehicle unattended on a two lane highway at dusk. The second actor approached the stranded car and attempted to pass in the opposite lane but was involved in a head-on collision with the plaintiff. The Kline Court granted a new trial in which the following test of liability was to be applied:

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...

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