Kasanovich v. George

• Decision Date: 22 November 1943
• Docket Number: 122
• Citation: 348 Pa. 199,34 A.2d 523
• Parties: Kasanovich, Admrx., Appellant, v. George et al., Trustees
• Court: Pennsylvania Supreme Court

34 A.2d 523

348 Pa. 199

Kasanovich, Admrx., Appellant, v. George et al., Trustees

No. 122

Supreme Court of Pennsylvania

November 22, 1943

Argued September 29, 1943.

Appeal, No. 122, March T., 1943, from judgment of C.P Allegheny Co., Oct. T., 1941, No. 2657, in case of Sophie Karaica Kasanovich, Admrx. v. W. D. George et al., Trustees. Judgment reversed.

Trespass for wrongful death. Before RICHARDSON, J.

Verdict directed for defendants and judgment entered thereon. Plaintiff appealed.

Judgment reversed and a new trial granted.

John E Evans, Jr., of Evans, Evans & Spinelli, with him Arthur L. McLaughlin, Jr., for appellants.

D. H. McConnell, with him J. R. McNary, for appellee.

Before MAXEY, C.J., LINN, STERN, PATTERSON and STEARNE, JJ.

OPINION

MR. JUSTICE HORACE STERN:

Plaintiff's decedent was employed as a laborer by the McCrady Construction Company, which was engaged in the reconstruction of West Carson Street in the City of Pittsburgh. At the time of the accident which gave rise to this litigation men were working at different points along the north side of the street putting in a curb and sidewalk, and the street was closed by a barricade to westbound automobile traffic. The afternoon of the accident was clear and bright. Decedent, who had been working at some distance east of the barricade, was sent by his foreman on an errand to the toolhouse of the company which was situated west of the barricade and on the south side of the street. While he was walking alongside the outer rail of the westbound track, at a distance from it of about 18 inches, he was struck from the rear by the right front corner of a street car which was behind its scheduled time, and, according to testimony offered by plaintiff, had picked up speed from a point some 300 feet east of the barricade and was running, slightly downgrade, at a rate of from 30 to 35 miles an hour. Decedent died within a few minutes. There was evidence that no gong was sounded, and, as the car was of the new type and the rails of the westbound track were newly laid and embedded in concrete, its approach was virtually noiseless. The motorman's view was unobstructed; he admitted that he had had decedent under continuous observation for a distance of 200 feet, and one of the witnesses testified to seeing decedent walking for at least 75 feet alongside the rail before he was struck. A passenger said that he did not hear the brakes go on until after decedent had been hit by the car.

The learned trial judge gave binding instructions for defendant because of decedent's contributory negligence; the court in banc refused a new trial.

The rule that a person working on the highway is held to a less rigorous standard of care than a pedestrian is not applicable unless he is actually engaged upon his labors and so absorbed therein that he is not free to take precautions for his own safety: Sweatman v. Pennsylvania R.R. Co., 264 Pa. 286, 289, 107 A. 697, 698; Copertino v. Chrobak, 346 Pa. 49, 29 A.2d 504. For decedent to have walked alongside the streetcar track and in close proximity to it, with his back to approaching cars, and without making the necessary observations to protect himself, was so clearly negligence on his part which contributed to the happening of the accident that the court was justified in declaring it to be such as a matter of law.

The real question in the case is whether plaintiff can nevertheless recover in this action. At the outset it may be well to reiterate what was said in Weir v. Haverford Electric Light Co., 221 Pa. 611, 617, 70 A 874, 876: "The doctrine of comparative negligence has not been recognized in our state. Any negligence on the part of a plaintiff that contributes to, and is the proximate cause of, his injury defeats his action. There can be no balancing or matching of degrees of negligence." Nor has Pennsylvania adopted the doctrine of the "last clear chance" that, notwithstanding negligence on the part of the injured person, the tortfeasor will be held liable if, by the exercise of reasonable care, he could have discovered the peril to which the other had exposed himself, and then, by due care, could have avoided the accident. What plaintiff contends, however, is that, even though decedent was negligent, recovery is permissible if defendant intentionally inflicted the injury, or if he was guilty of what is usually denominated "wanton negligence", (although a better term would be "wanton misconduct"), which is characterized by a realization of the probability of injury to another (or at least where the circumstances would cause such a realization to a reasonable man)...