Kline v. Moyer

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: STERN, Justice.
• Citation: 325 Pa. 357,191 A. 43
• Parties: KLINE et al. v. MOYER et al.
• Decision Date: 22 March 1937

191 A. 43
325 Pa. 357

KLINE et al.
v.
MOYER et al.

Supreme Court of Pennsylvania.

March 22, 1937.

191 A. 43

Appeals Nos. 73, 74, January term, 1937, from judgments of Court of Common Picas, Berks County; Paul N. Schaeffer, President Judge.

Action in trespass by Virginia Kline, a minor, by her father and next friend, Gordon S. Kline, and the latter individually, against Harry B. Moyer and M. Albert, to recover for damages sustained by plaintiff in an automobile collision. Verdict for minor plaintiff in the sum of $4,039, and for plaintiff Gordon S. Kline, individually, in the sum of $940, and from a judgment for defendant Albert notwithstanding the verdict after discharge of defendant Moyer's rule for new trial, plaintiffs appeal.

Reversed, defendant Albert's rule for new trial made absolute, and defendant Moyer's rule reinstated and made absolute.

Argued before KEPHART, C. J., and SCHAFFER, MAXEY, DREW, LINN, STERN, and BARNES, JJ.

Charles H. Weidner and Stevens & Lee, all of Reading, for appellants. G. A. Troutman, of Philadelphia, Paul D. Edelman, of Reading, and Wesley, Wagoner, Troutman & McWilliams, of Philadelphia, for appellees.

STERN, Justice.

On a clear day in January, 1935, defendant Albert was driving his truck on the Philadelphia pike to Reading. At

191 A. 44

about 3.:15 p. m., when five or six miles from his destination, the rear axle broke. At that point the road is straight for a considerable distance; it is a concrete highway 20 feet wide, with 8 to 12 foot berms. Albert, being alone on the truck, went to Reading to seek aid, leaving the truck standing where it had stopped on the easterly side of the road, with all four wheels on the concrete. At about 5:50 p. m., it having become dusk, a car in which minor plaintiff was a guest rider came down the pike from Reading and as it started to pass the standing truck another automobile, driven by defendant Moyer and going in the direction of Reading, swerved from the rear of the truck into the opposite lane of travel and struck plaintiffs' car in what was practically a head-on collision. There was testimony that the Moyer car had been traveling at more than 45 miles an hour, that it did not slacken its speed, and that it turned to its left at a distance variously estimated at 35 to 60 feet from the rear of the truck. The present suit was brought against both Moyer and Albert to recover for damages sustained by plaintiffs. The negligence charged against Moyer was his failing to observe the truck, his approaching it at such a rate of speed that he was unable to stop in time to avoid the collision, and his driving to the left side of the road without previously observing whether there was an oncoming car. The charge against Albert was that he permitted his truck to stand on the traveled part of the highway unguarded and insufficiently lighted. The jury rendered a verdict against both defendants. Each of them moved for a new trial, and defendant Albert also for judgment n. o. v. Moyer's rule for a new trial was discharged, but the court granted Albert's motion for judgment n. o. v., and the present appeal is by plaintiffs from that ruling.

While there is some contention on the part of Albert that the testimony as to the absence of a red light was merely negative and should not have been submitted to the jury in view of positive evidence that the tail-light was lit, there was also testimony that, if there was such a light, it was obscured by the position of the tailboard; therefore it was for the jury to determine whether the requirements of the law were sufficiently met.

Assuming, then, that the verdict of the jury conclusively established the fact of Albert's negligence, the important and, indeed, the only question on the present appeal is whether such negligence was, in whole or in part, a proximate cause of the accident, or whether, on the contrary, it was legally insulated by intervening negligence on the part of Moyer, reducing Albert's negligence to the status of a remote cause, and thereby absolving him from liability. The court below sustained the latter view, and held that the case was ruled by Stone v. Philadelphia, 302 Pa. 340, 153 A. 550, and Hoffman v. McKeesport, 303 Pa. 548, 154 A. 925.

In the Stone Case the City of Philadelphia had negligently allowed a hole to remain in a street. One Leven drove his automobile into the depression, lost control of the car, and violently struck plaintiff, a bystander. Leven knew of the existence of the hole, having for a long period of time frequently driven over that portion of the roadway. It was held that there could be recovery only against Leven, and not against the city, because its negligence was not the proximate cause of the accident. The court said (302 Pa. 340, at pages 345, 346, 153 A. 550, 552): "If Leven had not known of the hole and unwittingly had driven into it, there might arise a different legal liability situation, but he knew of it, and directly produced the injuries to plaintiff by his lack of care in not avoiding it. The defect in the street was passive so far as plaintiff was concerned. Without the independent act of Leven, no harm would have come to him from it."

In the Hoffman Case, the City of McKeesport was negligent in having constructed a trench in the highway and allowing the refill to remain without paving for several weeks so that it developed a deep depression. A truck ran into it and swerved against a passing car in which plaintiff was a passenger, causing him injury. The court held that the city was not liable because its negligence was only a remote and not an efficient factor. The truck driver testified that he was aware of the defect and "knew it was...