McCay v. Philadelphia Elec. Co.

• Decision Date: 25 May 1972
• Citation: 291 A.2d 759,447 Pa. 490
• Parties: Joseph S. McCAY and Jean O. McCay, his wife, Appellants, v. PHILADELPHIA ELECTRIC COMPANY, Appellee.
• Court: Pennsylvania Supreme Court

Page 759

291 A.2d 759

447 Pa. 490

Joseph S. McCAY and Jean O. McCay, his wife, Appellants, v. PHILADELPHIA ELECTRIC COMPANY, Appellee.

Supreme Court of Pennsylvania.

May 25, 1972.

Malcolm B. Petrikin, Leo A. Hackett, Fronefield, DeFuria & Petrikin, Media, for appellants

Hinkson & Cantlin, J. H. Ward Hinkson, Chester, for appellee.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION

NIX, Justice.

Between two and two-thirty in the afternoon of August 22, 1963, the appellant, Jean O. McCay, was operating an automobile owned by her employer, Community Nursing Service, on MacDade Boulevard in Folsom, Delaware County. It was raining at the time, and the road surface was wet.

Several blocks west of where the accident occurred, Mrs. McCay had turned right onto MacDade Boulevard, which was two lanes for travel in each direction, and had then driven eastwardly in the lane nearest the curb. She remained in that lane until she passed the Swarthmore Avenue intersection when she turned on her left-turn signal and moved from the outside to the inside eastbound traffic lane of MacDade Boulevard. Her left-turn signal remained on continuously as she proceeded through the next intersection, Folsom Avenue, and throughout the length of the next block and halfway into the Rutledge Avenue intersection. At this time, after having traveled approximately 450--500 feet with her left-turn signal on, Mrs. McCay brought her car to a complete stop in the middle of the Rutledge Avenue intersection.

From Swarthmore Avenue to Rutledge Avenue a Philadelphia Electric Company automobile had been following Mrs. McCay at a distance of approximately 25 to 30 feet. A Freihofer delivery truck, in turn, was following the Philadelphia Electric Company car at a distance of 35 to 40 feet. All three vehicles were maintaining the same speed of approximately 25 miles per hour.

When Mrs. McCay stopped in the intersection she was hit from the rear by the Philadelphia Electric automobile. The Freihofer truck then struck the rear of the Philadelphia Electric vehicle, but not with such impact as to cause a second collision with Mrs. McCay's car. Although there was no testimony by the driver of the Philadelphia Electric automobile, since he had died from causes unrelated to the accident prior to the trial, the truck driver testified that Mrs. McCay's stop was sudden. Mrs. McCay stated that she gradually slowed down before coming to a complete stop.

At no time had appellant noticed the Philadelphia Electric automobile following her. She admitted that she had never looked into the rear-view miror as she was about to stop; that she never made any check of any kind of the traffic following her; and that had she looked and seen the Philadelphia Electric automobile closely behind her, she could have safely continued through the intersection without stopping.

After the accident, Mrs. McCay told a police officer that she was 'not injured or hurt in any way.' Record, vol. 2, at 186a. The car was fully operable and all damage was repaired at a total cost of $41.15. Subsequently, she complained of severe headaches and a soreness in the area of her neck and shoulders. Mrs. McCay consulted an Orthopedic Specialist who prescribed medication and a collar. Ultimately, she had to undergo two operations, one on her cervical spine and another which consisted of a lumbar fusion.

Suit was instituted by the appellants for recovery by the wife appellant for pain and suffering, loss of earnings and permanent impairment of earning power; by the husband appellant for compensation for past and future medical expenses and loss of consortium.

At the conclusion of a six-day trial, the jury, after deliberating an hour and five minutes, returned a verdict in favor of the appellee. Appellants' attorney moved for a new trial, which motion was dismissed by order of the Court of Common Pleas of Delaware County sitting en banc. An appeal to this Court followed.

The first assignment of error raises the interesting question of the nature of the causal relationship between the plaintiff's negligence and the happening of the accident that is required to bar recovery. In Crane v. Neal, 389 Pa. 329, 332--333, 132 A.2d 675, 677--678, (1957), this Court specifically held that a trial judge commits reversible error in charging a jury that a plaintiff's negligence would not bar his recovery unless it was a proximate cause of the accident. ¹ In that case it was stated that '(a)though broader language may be found in a few cases, 'There is not the slightest doubt (under the law of Pennsylvania) that a plaintiff is guilty of contributory negligence and cannot recover if his negligence contributed in any degree, however slight, to the injury." 389 Pa. at 332--333, 132 A.2d at 677 (footnote omitted) (citations omitted).

No statement could be more erroneous. The doctrine of 'slightest degree' is not, nor has it ever been, the correct statement of Pennsylvania law as to the necessary causal relationship between plaintiff's negligence and the resultant injury. See Cebulskie v. Lehigh Valley R.R. Co., 441 Pa. 230, 233, 272 A.2d 171, 173 (1971); Argo v. Goodstein, 438 Pa. 468, 481, 265 A.2d 783, 789--790 (1970); Hamilton v. Fean, 422 Pa. 373, 378, 221 A.2d 309, 312 (1966); Brazel v. Buchanan, 404 Pa. 188, 192--193, 171 A.2d 151, 154--155 (1961); Geelen v. Pennsylvania R.R. Co., 400 Pa. 240, 248, 161 A.2d 595, 600 (1960); Kasanovich v. George, 348 Pa. 199, 202, 34 A.2d 523, 525 (1943). The rules which determine the causal relation between the the plaintiff's negligence and the injury are the same as those determining the causal relation between defendant's negligent conduct and the injury sustained by others. There is no reason in law or in logic which would dictate a distinction between these two situations. ² In both instances it was necessary to find that the negligence was the proximate cause of the accident. That is, if the defendant's negligence was not the proximate cause of the injury then he cannot be held accountable, and likewise if plaintiff's negligence was not a proximate cause it will not bar his recovery.

We agree with the statement of Justice O'Brien in Cebulskie v. Lehigh Valley R.R. Co., 441 Pa. at 234, 272 A.2d at 173: 'Those cases which seem to imply that the 'slightest degree' test is in conflict with the proximate cause test (citations omitted) 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.' Those cases following the Crane 'slightest degree' test failed to distinguish slight negligence from slight contribution. The 'slightest degree' test properly applies to the degree of negligence and is but a reaffirmation of Pennsylvania's long standing refusal to accept any theory of comparative negligence. To eliminate any further confusion in this area we specifically overrule Crane v. Neal. ³ The correct statement of the law is that a plaintiff cannot recover if his own negligence, however slight, contributes to the happening of the accident in a proximate way.

In the instat case, appellants maintain that the trial court's instruction on contributory negligence was error. The applicable portion of the lower court's instruction to the jury on contributory negligence was as follows: 'Any plaintiff who is guilty of contributory negligence cannot recover under the law of this State, no matter how negligent the defendant may have been. If a plaintiff was guilty of negligence which contributed to the happening of his own injury in any degree, however slight it may have been, he cannot prevail in a suit for damages arising from that accident. The test is whether the act or acts alleged as constituting negligence contributed in any degree to the production of the injury.' Record, vol. 2, at 248a (emphasis added) Although this portion of the charge could possibly be interpreted to suggest an adherence to the erroneous 'slightest degree' test, we believe that when reviewed in its entirety the trial court's charge to the jury on contributory negligence was in compliance with Pennsylvania law. It is important to note that immediately after explaining contributory negligence and the appropriate burdens of proof, the trial court charged the jury with respect to the distinction between 'proximate cause' and 'remote cause'. Although the charge was phrased in reference to defendant's negligence, its positioning immediately following a description of plaintiff's conduct left a clear implication that plaintiff's negligence must be a proximate cause. This is reinforced by the fact that proximate cause had previously been discussed with reference to defendant's negligence.

Further information with respect to the causal relationship which must exist between any contributory negligence on the part of the appellant and the happening of the accident was presented to the jury when the court affirmed appellee's fourth and fifth Points for Charge. In both instances the jury was told that contributory negligence on the part of Mrs. McCay would serve as a bar to recovery only if such negligence 'had a direct causal relationship to the accident.' Record, vol. 2, at 273a, 275a. In summary, we find that the trial court effectively charged the jury on the issue of contributory negligence. ⁴

Appellants also argue that the trial judge committed prejudicial error requiring the granting of a new trial when he allowed opposing counsel to question Mrs. McCay concerning a prior...