Welser v. United Gas Improvement Co.

• Court: Pennsylvania Supreme Court
• Writing for the Court: MR. JUSTICE MAXEY:
• Citation: Welser v. United Gas Improvement Co., 304 Pa. 227, 155 A. 561 (Pa. 1931)
• Decision Date: 25 May 1931
• Docket Number: 154,155
• Parties: Welser et al. v. United Gas Improvement Co., Appellant

155 A. 561

304 Pa. 227

Welser et al. v. United Gas Improvement Co., Appellant

Nos. 154, 155

Supreme Court of Pennsylvania

May 25, 1931

Argued April 27, 1931

Appeals, Nos. 154 and 155, Jan. T., 1931, by defendant, from judgment of C.P. No. 2, Phila. Co., March T., 1925, No. 558 on verdict for plaintiffs, in case of Alfred Welser, by his father and next friend, Harry Welser, and Harry Welser, in his own right, v. United Gas Improvement Company. Affirmed.

Trespass for personal injuries to a minor 14 years old. Before STERN P.J.

The opinion of the Supreme Court states the facts.

Verdict for plaintiff, the minor, Alfred Welser, for $15,000, on which judgment was entered for $12,000, and for Henry Welser, the father, for $612.25. Defendant appealed.

Error assigned, inter alia, was order overruling motion for judgment for defendant n.o.v., quoting record.

The judgment is affirmed.

W. Heyward Myers, Jr., with him Francis B. Bracken, for appellant. -- There was no evidence of negligence on the part of defendant, nor that the acts of defendant's employees were the proximate cause of the injuries to the minor plaintiff: Lederman v. R.R., 165 Pa. 118; Connor v. Traction Co., 173 Pa. 602; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Stemmler v. Pittsburgh, 287 Pa. 365; Rugart v. Baking Co., 277 Pa. 408; Stone v. Phila., 302 Pa. 340; Marsh v. Giles, 211 Pa. 17; Nirdlinger v. Tel. Co., 245 Pa. 453; Rhad v. Light Co., 255 Pa. 409.

There are numerous decisions in Pennsylvania where it has been held as a matter of law that the act of an intervening agent, between the original negligence and the injury, was the proximate cause: Marsh v. Giles, 211 Pa. 17; Rhad v. Light Co., 255 Pa. 409.

The judgment of $12,000 for the minor plaintiff is excessive.

William Charles Brown, with him Thomas James Meagher, for appellee. -- The action of the policeman was not an independent intervening agency: Corbin v. Phila., 195 Pa. 461.

The intervention was a consequence of defendant's wrongdoing, which, under the circumstances, should have been foreseen as a natural and probable consequence of the defendant's misconduct: Haverly v. Ry., 135 Pa. 50; Dannehower v. Tel. Co., 218 Pa. 216; Stemmler v. Pittsburgh, 287 Pa. 365; Toner v. R.R., 263 Pa. 438; Wallace v. R.R., 222 Pa. 556.

The original wrongful act having produced the foreseeable injury, the law will pass through intervening causes which are innocent and refer the injury to the first efficient culpable cause: Howarth v. Express Co., 269 Pa. 280; Murray v. Frick, 277 Pa. 190.

The policeman's negligence was merely a concurrent cause; defendant is not relieved of liability: Thomas v. Traction Co., 270 Pa. 146; Koelsch v. Phila., 152 Pa. 355; Gorman v. Charlson, 287 Pa. 410.

The judgment was not excessive: Wilson v. Dressed Beef, 295 Pa. 168.

Before FRAZER, C.J., SIMPSON, KEPHART and MAXEY, JJ.

OPINION

MR. JUSTICE MAXEY:

The question before us is, What was the proximate cause of the injuries sustained by the minor plaintiff when he was burned by the inflammable substance hereinafter referred to? Was it the act of defendant's employees in burning this substance of the character of naptha and called "condensation," in an uncovered bucket in a public street in the City of Philadelphia, or was it the act of a policeman who, seeing the fire which had been lighted in the roadway in disobedience of a city ordinance, kicked it over toward the minor plaintiff, who was three or four feet away?

Defendant's employees on January 15, 1924, carried about one quart of condensation from the meter of a house, in a ten-quart galvanized bucket, and set fire to this substance in a public street. Several boys came and watched the burning. An ordinance of the City of Philadelphia declares it a nuisance to burn combustible matter in any of the highways, squares or parks of the City of Philadelphia except under certain conditions not present in this case. A police officer appeared and said, "Put out that fire." Defendant's employees did nothing to put out the fire, but one of them said, "It is rules to burn that stuff." Another said, "Officer, this is condensation. We are permitted to burn this on the street." (They had no such permission.) The officer then kicked over the pail which contained the fire. The burning material spilled out and some of it ignited plaintiff's clothing. As a result, his neck, hands and legs were so severely burned that he was compelled to remain in a hospital for treatment for nearly five months. In the course of his treatment, skin was taken from his thighs and stomach and grafted on his neck. After suit and trial the jury awarded the minor plaintiff $15,000, and the minor's father $612.25, which latter was the amount of the hospital bill. Motions for judgment n.o.v. and for a new trial were filed. The motion for judgment n.o.v. was overruled, one judge dissenting, and the court made an order discharging the rule for a new trial if the minor plaintiff would remit all of the verdict in his favor in excess of $12,000. A remittitur was filed, and from the judgments on the verdicts in favor of the plaintiffs these appeals were taken.

The long-established test of proximate cause is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent and the final result cannot be said to be the natural and probable consequence of the primary cause: Thomas v. C.R.R. of N.J., 194 Pa. 511, 515; Stemmler v. Pittsburgh, 287 Pa. 365.

In Hoag v. Lake Shore & Mich. South. R.R. Co., 85 Pa. 293 298, this court, in an opinion by Mr. Justice PAXSON, said: "In determining what is proximate cause, the true rule is, that the injury must be the natural and probable consequence of the negligence -- such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his act." He also said in the same case: "How near or remote each fact is to its next succeeding fact in the concatenation of circumstances from the prime cause to the end of the succession of facts which is immediately linked to the injury, necessarily must be determined by the jury." The same idea as the first one quoted has been in slightly varied language expressed by the appellate courts of other jurisdictions. In Lane v. Atlantic Works, 111 Mass. 136, 139, the Supreme Court of Massachusetts said: "The act of a third person, intervening and contributing to a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen. The original negligence still remains a culpable, direct cause of the injury." In Atchison, etc., R.R. Co. v. Stanford, 12 Kan. 354, 377, the Supreme Court of Kansas said: "Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence, and if they are such as might, with reasonable diligence,...