|JONES, CJ. The appellant was found guilty of involuntary manslaughter for the death of his competitor in the course of an automobile race between them on a highway. . . . We granted allocatur because of the important question present as to whether the defendant's unlawful and reckless conduct was a sufficiently direct cause of the death to warrant his being charged with criminal homicide.
The testimony, which is uncontradicted in material part, discloses that, on the night of the fatal accident, the defendant accepted the deceased's challenge to engage in an automobile race; that the racing took place on a rural 3-lane highway; that the night was clear and dry, and traffic light; that the speed limit on the highway was 50 miles per hour; that, immediately prior to the accident, the two automobiles were being operated at varying speeds of from 70 to 90 miles per hour; that the accident occurred in a no-passing zone on the approach to a bridge where the highway narrowed to two directionally-opposite lanes; that, at the time of the accident, the defendant was in the lead and was proceeding in his right-hand lane of travel; that the deceased, in an attempt to pass the defendant's automobile, when a truck was closely approaching from the opposite direction, swerved his car to the left, crossed the highway's white dividing line and drove his automobile on the wrong side of the highway head-on into the oncoming truck with resultant fatal effect to himself.
This evidence would of course amply support a conviction of the defendant for speeding, reckless driving and, perhaps, other violations of The Vehicle Code. . . . [However], unlawful or reckless conduct is only one ingredient of the crime of involuntary manslaughter. Another essential and distinctly separate element of the crime is that the unlawful or reckless conduct charged to the defendant was the direct cause of the death in issue. The first ingredient is obviously present in this case but, just as plainly, the second is not.
While precedent is to be found for application of the tort law concept of "proximate cause" in fixing responsibility for criminal homicide, the want of any rational basis for its use in determining criminal liability can no longer be properly disregarded. When proximate cause was first borrowed from the field of tort law and applied to homicide prosecutions in Pennsylvania, the concept connoted a much more direct casual relation in producing the alleged culpable result than it does today. Proximate cause, as an essential element of a tort founded in negligence, has undergone in recent times, and is still undergoing, a marked extension. . . . To persist in applying the tort liability concept of proximate cause to prosecutions for criminal homicide after the marked expansion of civil liability of defendants in tort actions for negligence would be to extend possible criminal liability to persons chargeable with unlawful or reckless conduct in circumstances not generally considered to present the likelihood of a resultant death. . . .
The instant case is one of first impression in this State; and our research has not disclosed a single instance where a district attorney has ever before attempted to prosecute for involuntary manslaughter on facts similar to those established by the record now before us. The closest case, factually, would seem to be Commonwealth v. Levin . . . , which affirmed the defendant's conviction of involuntary manslaughter. In the Levin case two cars were racing on the streets of Philadelphia at speeds estimated at from 85 to 95 miles per hour. The defendant's car, in the left-hand lane, was racing alongside of the car in which the deceased was a passenger when the defendant turned his automobile sharply to the right in front of the other car, thereby causing the driver of the latter car to lose control and smash into a tree, the passenger being thrown to the road and killed as a result of the impact. It is readily apparent that the elements of causation in the Levin case were fundamentally different from those in the present case. Levin's act of cutting his automobile sharply in front of the car in which the deceased was riding directly forced that car off of the road and into the tree. The defendant's reckless and unlawful maneuver was the direct cause of the crucial fatality. In the instant case, the defendant's conduct was not even remotely comparable. Here, the action of the deceased driver in recklessly and suicidally swerving his car to the left lane of a 2-lane highway into the path of an oncoming truck was not forced upon him by any act of the defendant; it was done by the deceased and by him alone, who thus directly brought about his own demise. The Levin case was properly decided but it cannot, by any rationalization, be utilized to justify a conviction in the present case.
Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law's encompassing concept of proximate cause is too harsh to be just. [For example], In Marchl v. Dowling & Company . . . , it was held that where a truck driver had double parked his truck and the minor plaintiff was struck by a passing car when she walked around the double parked truck, the truck driver's employer was held liable in tort for the plaintiff's injuries on the ground that the truck driver's act of double parking, which violated both a State statute and a city ordinance, was the proximate cause of the plaintiff's injuries. Here, also, if proximate cause were the test for criminal liability and the plaintiff's injuries had been fatal, the truck driver would have been guilty of involuntary manslaughter since his unlawful act would have been the proximate cause of the death for which his employer was held liable in damages under respondeat superior. To be guilty of involuntary manslaughter for double parking would, of course, be unthinkable, yet if proximate cause were to determine criminal liability, such a result would indeed be a possibility. . . .
Under the uncontradicted evidence in this case, the conduct of the defendant was not the proximate cause of the decedent's death as a matter of law. In Kline v. Moyer and Albert . . . , the rule is stated as follows: "Where a second actor has become aware of the existence of a potential danger created by the negligence of an original tortfeasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause." . . .
In the case now before us, the deceased was aware of the dangerous condition created by the defendant's reckless conduct in driving his automobile at an excessive rate of speed along the highway but, despite such knowledge, he recklessly chose to swerve his car to the left and into the path of an oncoming truck, thereby bringing about the head-on collision which caused his own death.
To summarize, the tort liability concept of proximate cause has no proper place in prosecutions for criminal homicide and more direct casual connection is required for conviction: Commonwealth v. Redline. . . . In the instant case, the defendant's reckless conduct was not a sufficiently direct cause of the competing driver's death to make him criminally liable therefor.
The judgment of sentence is reversed and the defendant's motion in arrest of judgment granted.
EAGEN, J. dissenting. The opinion of the learned Chief Justice admits, under the uncontradicted facts, that the defendant, at the time of the fatal accident involved, was engaged in an unlawful and reckless course of conduct. Racing an automobile at 90 miles per hour, trying to prevent another automobile going in the same direction from passing him, in a no-passing zone on a two-lane public highway, is certainly all of that. Admittedly also, there can be more than one direct cause of an unlawful death. To me, this is self-evident. But, says the majority opinion, the defendant's recklessness was not a direct cause of the death. With this, I cannot agree.
If the defendant did not engage in the unlawful race and so operate his automobile in such a reckless manner, this accident would never have occurred. He helped create the dangerous event. He was a vital part of it. The victim's acts were a natural reaction to the stimulus of the situation. The race, the attempt to pass the other car and forge ahead, the reckless speed, all of these factors the defendant himself helped create. He was part and parcel of them. That the victim's response was normal under the circumstances, that his reaction should have been expected and was clearly foreseeable, is to me beyond argument. That the defendant's recklessness was a substantial factor is obvious. All of this, in my opinion, makes his unlawful conduct a direct cause of the resulting collision. . . .
The majority opinion states, "Legal theory which makes guilt or innocence of criminal homicide depend upon such accidental and fortuitous circumstances as are now embraced by modern tort law's encompassing concept is . . . too harsh to be just." If the resulting death had been dependent upon "accidental and fortuitous circumstances" or, as the majority also say, "in circumstances not generally considered to present the likelihood of a resultant death," we would agree that the defendant is not criminally responsible. However, acts should be judged by their tendency under the known circumstances, not by the actual intent which accompanies their performance. Every day of the year, we read that some teen-agers, or young adults, some-where in this country, have been killed or have killed others, while racing their automobiles. Hair-raising, death-defying, lawbreaking rides, which encompass "racing" are the rule rather than the exception, and endanger not only the participants, but also every motorist and passenger on the road. To call such resulting accidents "accidental and fortuitous," or unlikely to result in death, is to ignore the cold and harsh reality of everyday occurrences. Root's actions were as direct a cause of Hall's death as those in the "shield" cases. Root's shield was his high speed and any approaching traffic in his quest to prevent Hall from passing, which he knew Hall would undertake to do, the first time he thought he had the least opportunity.