It is important to bear in mind that the sole basic question on this appeal is whether the evidence in the case justified the jury's finding that negligence on the part of the defendant was the proximate cause of the fatal injuries to Conrad Seader for whose death the instant suit was brought by his parents and his administrator for the recovery of damages. Admittedly, no question of contributory negligence, as a matter of law, is here involved.
The action of the court below in entering judgment n. o. v. for the defendant rests solely upon the court's assumption that the plaintiffs failed to prove the defendant negligent. The fact is that the defendant's causative fault in the premises appears with a greater certainty than is ordinarily to be found in accident cases. That certainty logically results from applying to the facts, to which the plaintiffs are now entitled, the rule of law which prescribes that it is the duty of an operator of a modern tractor-trailer on a public highway to be mindful *Page 374 of the safety not only of those in front of him (in the direction of his travel) but also of those who may come within "the zone of apprehensible danger" along the sides of the trailer, i.e., "within the swinging, swaying or swerving radius of the trailer", — a condition which is especially pronounced on wet or icy roads and streets: Dorris v. Bridgman Co.,296 Pa. 198, 203, 145 A. 827.
The court below, whose judgment the majority of this court now sustains, exculpated the defendant of the charge of negligence on the ground that "The duty of the driver [of the tractor-trailer] required his attention to the road in front rather than anticipating anything which might happen in the rear of the truck". The opinion for this court advances no other reason for denying plaintiffs their right to recover. I am wholly at a loss to understand how the duty of an operator of a present day tractor-trailer can possibly be so narrowly restricted. In our own pertinent decision in Dorris v. Bridgman Co., supra, Mr. Justice KEPHART laid down what seems to me to be the reasonable and obviously necessary rule that "Where a truck and trailer travel on a highway, the zone ofapprehensible danger includes not only objects immediately in front, but such objects as may come within the swinging,swaying or swerving radius of the trailer". (Emphasis supplied).
True enough, in the Dorris case there was the additional negligent circumstance in the loading of the trailer with heavy iron pipes which overhung the rear of the vehicle by five feet, one pipe lying in a diagonal position causing it to extend beyond a side of the area traversed by the body of the trailer. Actually, the length of the radius afforded by the pivoted trailer in the instant case was seven feet longer than the radius of the trailer and the extended pipe in the Dorris case. Even so, improper loading was only one of two independent elements making for the defendant's negligence in the Dorris case. The other element, viz., the defendant's negligent operation of the tractor-trailer furnishes the rule pertinent to the facts of this case. The principle *Page 375 here applicable is implicit in the Dorris decision which plainly recognizes the possibility of negligence in "the operation of [a] truck and trailer" to be derived from the side movement of the trailer when sufficient to cause injury to a pedestrian standing nearby but out of the vehicle's normal line of travel.
This development in the law of negligence, as thus recognized by Mr. Justice KEPHART in the Dorris case, is but an illustration of the natural growth of tort law which of necessity resides in court decisions. Because of the relative standard for determining the existence of negligence, the decisional rules for testing whether the care required in a given instance has been exercised must necessarily be altered at least to the extent of adapting them to the changing circumstances of modern transportation and communication. That the advent of the tractor-trailer, originating from the development and expansion of business, has resulted in the greater use of public highways and that the hazards to which the ordinary person must expose himself daily in his use of the highways have been thus greatly increased are facts self-evident and were understandingly so recognized in theDorris case. A tractor-trailer in combination is not rigid, as an operating unit, like a truck which, on a single chassis, with front and rear wheel contacts with the highway, constitutes the entire automotive vehicle. The nature of the fastening device of a tractor-trailer enhances its very danger by increasing the potential swing or sway and therefore necessitates utilization of a greater highway space. The immensity of these vehicles (likened to a train running down the street by Mr. Justice KEPHART) adds further to the incident dangers. Indeed, it has been recognized by this court that the bulky dimensions of these cumbersome vehicles is a pertinent factor to be considered in the determination of care in their operation, because their length and width may be among the conditions and circumstances attending the alleged negligent act charged. In this connection Mr. Justice (now Chief Justice) MAXEY pertinently observed *Page 376 in Nevin Bus Line, Inc. v. Hostetter Co., Inc., 305 Pa. 72, 78,155 A. 872, "The jury had a right to consider this excessive width, [viz., eight feet] not for the purpose of convicting the defendant of violating the provisions of the Vehicle Code relating to the width of trailers, but for the purpose of considering that fact with the other evidence in the case as one of the circumstances by which the care exercised by the defendant was to be measured". The trailer in the instant case was seven feet ten inches wide and, together with the tractor, was forty-four feet six inches long. On the not uncommon sixteen foot roads of this Commonwealth such a vehicle would occupy completely one-half of the highway exclusive of incidental swing or sway emanating from its radial movement or thrust upon being deviated from a straight line of direction, e.g., in doing no more than turning a curve or even a slight bend in the road. But, the majority opinion holds that the operator of the tractor is under no duty to consider a possible lateral movement of an attached trailer.
It seems not unreasonable to suggest, as the Dorris case envisioned, that the operator of a tractor-trailer owes a duty to persons coming within the zone of apprehensible danger along the side of the trailer due to the operator's sudden deviation from the line of travel. Here, for the asserted purpose of avoiding a vehicle parked on the north side of Locust Street, the driver suddenly veered the tractor diagonally in its course, — a movement which the jury was justified in finding was the cause of the trailer's wide swing. There is certainly no arbitrary legal standard on the basis whereof the trial court could say, as a matter of law, that the evidence did not justify a finding of negligence merely because a witness had not gone on and given his opinion that the wide swing of the trailer was due to the diagonal veering of the tractor. That matter was peculiarly for the jury.
The cases of Barton v. Craighill, 268 Pa. 464, 112 A. 96, andOsterheldt v. Peoples, 208 Pa. 310, 57 A. 703, *Page 377 cited in the majority opinion, are not presently in point.Barton v. Craighill, at most a per curiam affirmance of a judgment n. o. v. for the defendant, is readily distinguishable on its facts, — the distinguishing feature being that the injured pedestrian in that case, when last observable by the driver of the truck, was in a place of safety and moving away from the truck. The judgment n. o. v. for the defendant, there entered, is logically explainable on the basis of the pedestrian's contributory negligence which is not involved here. In passing, it may also be noted that the Dorris decision likewise distinguished and thereupon disregarded the Craighill case. The advent of a new era of tremendously increased vehicular traffic with its large trucks and buses and huge tractor-trailers and the consequent complexity of modern driving renders Osterheldt v. Peoples, involving a horse and wagon accident of 1902, practically useless as a guiding principle to the situation presented by the facts of the instant case. More in line with the facts and circumstances here present is the case of Clark v. PhiladelphiaTransportation Company, 156 Pa. Super. 623, 41 A.2d 282. In that case it was recognized that the swerve and sidewise sagging of a bus, as well as the play in the springs under the force of a sudden turn, may be so great as to cause the body of the bus to extend over the curb line and thus become the proximate cause of injury to a person standing on the sidewalk. No further showing of negligence in the operation of the bus was required to support a verdict for the injured person in theClark case. The fact that Conrad Seader and his companion were standing in the cartway did not serve to render the defendant immune from liability for the negligence of the tractor's operator who was aware of their presence at the side of the trailer. The evidence shows that, when on the street, they were standing in a place of safety which would have continued so to be had not the rear of the trailer been made to swing sidewise as the result of the driver's sudden lateral deflection of the tractor. *Page 378
As I think the plaintiffs made out a case of liability on the part of the defendant, I necessarily dissent from the judgment which denies them a right of recovery.
Mr. Chief Justice MAXEY and Mr. Justice DREW join in this dissent.