Sullivan v. Wolson

• Decision Date: 14 February 1979
• Citation: Sullivan v. Wolson, 396 A.2d 1230, 262 Pa.Super. 397 (Pa. Super. Ct. 1979)
• Parties: Leon J. SULLIVAN and Elizabeth Sullivan, Appellants, v. Isadore WOLSON, Individually and t/a Wolson Furniture Co.
• Court: Pennsylvania Superior Court

Page 1230

396 A.2d 1230

262 Pa.Super. 397

Leon J. SULLIVAN and Elizabeth Sullivan, Appellants, v.Isadore WOLSON, Individually and t/a Wolson Furniture Co.

Superior Court of Pennsylvania.

Argued Sept. 13, 1978.

Decided Dec. 14, 1978.

Reargument Denied Feb. 14, 1979.

William C. Archbold, Jr., Media, for appellants.

Edward J. Carney, Jr., Media, for appellee.

Before PRICE, HESTER and HOFFMAN, JJ.

HOFFMAN, Judge:

Appellant contends that the court below erred in refusing to grant her a new trial because the trial judge erroneously: (1) charged the jury that she(plaintiff below) might be found contributorily negligent, (2) charged that appellee(defendant below) might be excused from liability because of a sudden emergency, and (3) failed to charge that the defendant could be found guilty of reckless and wanton misconduct.We agree with the first two of these contentions, and therefore remand the case for a new trial.

This lawsuit grows out of a series of three collisions all occurring within two or three minutes of each other on Township Line Road in Upper Darby Township.Township Line Road is a 60 foot wide highway, with six lanes divided by a double yellow line, and a posted speed limit of 35 m. p. h. There are two driving lanes each for eastbound and westbound drivers, and on either side of the road is an outermost parking lane, which is not used for traffic.Proceeding westerly, the road passes through several intersections: Dermond, Reservation, Apache, and Oleander Roads, respectively.On the north side between Reservation and Oleander, a series of houses front onto Township Line Road with driveway access to the westbound lanes.

Appellant testified as follows.She was driving westerly on Township Line Road on January 9, 1970, early in the morning on a clear day.Although it had snowed earlier in the week, the road was clear up to Dermond Road.Past that point, however, the road surface was visibly icy.Just past Reservation Road, she had a slight rear-end collision with a car in front of her driven by Harold Merves.Merves pulled his car over to the extreme right, and stopped along the curb in the westbound parking lane.Seeing this, appellant also pulled over into the parking lane, stopping about three car lengths in front of Merves, near the corner of Apache Road.

As appellant parked her car, she looked in her rear-view mirror and saw a vehicle driven by John Charles Moore come up from behind Merves, hit the left rear of Merves' car and skid all the way across Township Line Road.Merves' car was still at the curb it did not seem to have moved much from the impact.Neither of the cars were blocking the driving lanes of the highway; there was still room for two westbound cars to pass.

Appellant got out of her car, walked back and met Merves at the curb in front of his car.Moore got out of his car, crossed the street, and joined appellant and Merves in between the cars.At this point appellant lost consciousness, and woke up lying on the road, dazed.

Harold Merves' testimony concerning the conditions of Township Line Road matched appellant's testimony.After Dermond Road, he could see the ice on Township Line Road and other cars slowing down on it.It was icy enough, he thought, that a good driver would know it would be a "horrible thing" to brake on suddenly.Appellant's car made a very slight contact with the rear of his car in the right-hand driving lane, and then passed him on the left.He slowed down to pull over, but before he got out of his lane, he was struck again from behind on the left rear of his car by the vehicle driven by John Charles Moore.The contact pushed the Merves car up against the curb in the parking lane, with the rear of the car at a slight angle, three or four feet away from the curb.Appellant came over to his car and was standing at his left front fender near the curb, exchanging a few words there with him.As Moore approached them, they were hit by an unseen force, and Merves landed on the sidewalk.

The third eyewitness, John Charles Moore, was unavailable at trial, but his deposition was read by appellee Wolson.His description of the conditions of Township Line Road past Dermond matched that of appellant and Merves, except that he thought there remained enough snow accumulated on the highway so that there were not quite two lanes available for traffic.The Merves and Sullivan cars which were stopped within a mile of the point where the road turned icy, were sitting almost side-by-side in the middle of the road, Merves' car on the left and Sullivan's car on the right.Merves and Sullivan were standing in the right-hand lane, in between Sullivan's car and the curb.Finding his passage blocked, Moore stated that he tried to brake, but he skidded on the ice.He came into contact with the left rear bumper and fender of the Merves car at about 30 m. p. h. and then shot across the eastbound lanes to the other side of the road.He got out of his car, and crossed the street to where Merves and Sullivan were standing near the curb.When he arrived, there was a crash and he went flying through the air.

AppelleeIsadore Wolson, the verdict winner, testified that he was also driving westerly on Township Line Road, which was clear except for a little snow in the center of the highway and along the curb on either side, about two or three feet out onto the road.As he stopped at the traffic light at Dermond Road, the condition of the road ahead appeared to be the same, a clear, if dirty, blacktop surface.He testified that he could have seen the Sullivan and Merves vehicles stopped ahead if he had looked from there but he was concentrating on the lane of driving ahead.

As he proceeded beyond Dermond Road, he had no problem driving.The accumulation of snow in the center of the highway became wider and deeper, leaving only about a lane and a half for driving.He travelled in the left lane, on the edge of the snow, between 30 and 35 m. p. h. When he passed Reservation Road, he saw Merves' car on the right within the parking lane, with its rear angled out towards the driving lanes.He thought it was a car from one of the houses on the street backing out onto the highway, so he decided to slow down.When he put his foot on the brake, he lost control of his car, which slid down the road past three or four houses, drifting to the right.Just before contact with the right rear of the Merves' car, he saw two people standing at the curb beside the left front fender of the car.His car struck Merves' car, and continued to skid until he stopped in the snow in the center of the highway between Apache and Oleander Roads.Merves' car was pushed across the eastbound lanes to the other curb, near Moore's car, but was turned around and was now facing east.Wolson testified that when he walked back to the accident over the highway, only then did he realize that the road was covered with dirty compacted ice and snow.It was slippery to walk on, but so dirty that it just looked like natural paving.Wolson stated that if he had not applied his brakes when he did, he would have rolled right on by the Merves vehicle without incident.

Appellant first contends that there was no evidence in the record to justify the trial judge's charge to the jury on contributory negligence.We agree.The only evidence of contributory negligence mentioned in the charge was the appellant's prior collision with Merves.¹Appellee Wolson, in his brief, also argues that the jury could have found appellant contributorily negligent in that she voluntarily placed herself in a position of known danger when she remained standing in the parking lane of Township Line Road, next to the curb, in between the parked cars, even after witnessing the Moore collision.²

A plaintiff's antecedent negligence will not bar his recovery unless his negligence contributed to his injury as a proximate cause.Taylor v. Fardnik, 231 Pa.Super. 259, 331 A.2d 797(1975);Hunger v. La Barre, 224 Pa.Super. 507, 307[262 Pa.Super. 404] A.2d 407 (1973);Walters v. Char-Mar, Inc., 220 Pa.Super. 79, 284 A.2d 139(1971).To determine whether the actor's conduct is the proximate, or legal cause of harm, the court must consider (1) the number and extent of other forces contributing to the harm, (2) the lapse of time from the conduct to the harm, and (3) whether the conduct creates a force in operation up to the time of the harm, or simply creates a harmless situation which is acted upon by other forces for which the actor is not responsible.Wisniewski v. The Great Atlantic and Pacific Tea Co., 226 Pa.Super. 574, 323 A.2d 744(1974).

By the jury's verdict, we must assume that they found appellant negligent in her collision with Merves.However, while this was a "but for" cause in fact of the Wolson collision, still it was not the proximate or legal cause of that collision and appellant's injuries.Under the three-part Wisniewski test, we find that (1) this prior collision was a De minimis cause of her injuries compared to the nature and extent of the other contributing cause of the collision, namely appellee's conduct; (2) the two collisions were separate in time and place, the Merves' car coming to rest a minute or two before the Wolson collision; and (3) whatever force appellant set in motion came to rest when she and Merves parked their vehicles by the side of the road.This was a harmless situation which was acted upon by an outside force, the appellee Wolson.Thus, there was not sufficient evidence to go to the jury that appellant's antecedent negligence in her collision with Merves was the proximate cause of her injuries.

Appellee's contention that the jury could find appellant contributorily negligent because she stood on the highway in between two parked cars must also fail.

The driver of any vehicle involved in an accident resulting in damage to any vehicle has the duty to stop and give certain information to the other drivers...