Cannon v. Tabor

See: Commonwealth v. Jack- plea guilty. withdraw his son, judgment of sentence is affirmed.

Hugh CANNON, Mary Cannon, H/W, Appellants, F. III and TABOR, Appellee.

Marek Superior Pennsylvania. Court of

Argued Dec. 1993. Filed June Philadelphia, appellants. for Roger Harrington, J. Blatcher, Thornton, appellee. for Frank S. HOFFMAN, McEWEN, and JJ. OLSZEWSKI

Before McEWEN, Judge. an order which denied the has been taken from appeal

This Cannon, III, F. and by Hugh for relief filed post-trial motion (hereinafter of which as a result Mary appellants), Cannon in of Marek against them and favor judgment was entered (hereinafter in verdict favor appellee), following Tabor by appel- action instituted personal injury of this appellee sustained an intersec- damages injuries to recover for lants judgment vacate the entered tional automobile accident. We for a new trial. appellee in favor of and remand January filed on complaint, appellants The injuries by appellant Hugh the sustained sought damages Cannon, III, of a motor vehicle collision which F. as the result the 25, 1988. The accident occurred May occurred on Road and Fox Philadel- intersection of Abbottsford Street light, appel- controlled a traffic as at an intersection phia, Road on Abbottsford traveling Cannon was east Hugh lant Fox traveling north on Street. appellee was and that, he the of intersection approached testified Appellee roads, on Fox northbound traffic light controlling the two Appellee complete stop. red that he came to a Street Street, that, stopping on Fox testified seconds after further not did green, that he looked left and light the traffic turned he Cannon, and that operated by Hugh car appellant see the intersection, the intersection. Once proceeded then into ear did he see the other only testified that then appellee unsuccessfully he to accel- and that tried rapidly approaching of its but was unable to avoid the collision. path erate out that, testified as he Appellant Hugh approached Cannon intersection, light. he traffic appellee’s stopped saw car he, having green light, testified that Mr. Cannon further sud- point appellee into the intersection at which proceeded intersection the red on Fox denly against light moved into the and, appellant immediately applied his brakes although Street horn, he was to avoid striking and sounded his unable appellee. driven by vehicle trial, had

Following three-day found that appellee rendered in his negligent Appel not been a verdict favor. post-trial requested grant filed motions which either the lants trial judgment liability n.o.v. on and a new limited to or, alternative, damages in the a new The trial issue trial.1 appeal timely court denied the motions followed. judgment argument appellant is entitled n.o.v. summarily rejected: considering an appellate The standard review of an court when denying judgment by granting n.o.v. is the same as that used order or we must determine whether there was sufficient the trial court: verdict, granting win- competent to sustain the the verdict evidence reasonably every that ner the benefit of reasonable inference can be testimony rejecting from all unfavorable drawn the evidence appropriate only in a where Judgment inferences. n.o.v. clear case agree no two minds fail to the facts are such that that, reasonable could law, party case. as a matter of the has failed make out his Co., 32, 36-37, Harvey Pa.Super. Rocker v. (1988). Community Community College, College, Accord: etc. v. 473 Pa. (1977). contradictory parties presented Since 375 A.2d 1267 the signals, duty jury to testimony as to traffic it became the of the to a new trial they are entitled argue The appellants on the assured clear jury instructed the the court since our review govern principles distance ahead rule.2 settled: a claim are well of such we apply error in instructions reviewing alleged In Systems, v. Dempster Sweitzer in recited standard (1988), as follows: 539 A.2d 880 Pa.Super. upon new trial is based the motion for a Where must examine the jury charge, of the we sufficiency of the background entirety against in its charge If error was committed. to determine whether evidence errone- charge concludes that the appellate court testimony. testimony of conflicting As for the and resolve the consider investigation appellee officer that appellant husband and the accident wrong signal, watching the traffic that he had been had admitted wrong had at the traffic appellee at the trial that he looked denied skills, that, language English signal reason of his limited and advised We were misunderstood. at the scene of the accident his statements where no two reasonable individuals say that this is a situation cannot therefore, and, negligent appellee had been differ as to whether could Thus, jury. dispute to the properly referred the factual the trial court entry judgment required appellants of the standard for fall short argue rejection the trial court of four Appellants further that the by appellants constituted reversible points charge submitted points because the sub submitted error. The trial court refused requested by appellants were covered specific stance of the instructions Huffine, 421 general charge. agree. We See: Strickler v. by the court's (1992); Ottavio v. Fibreboard 618 A.2d (1992); Summit Corp., 421 Co., Inc., Fasteners, Harleysville & Trust Inc. v. National Bank allo, denied, 56, 61-63, (1991), 530 Pa. 599 A.2d (1992). juiy challenge of the court to instruct the Appellants also the refusal say properly both heard to he looked in that a motorist cannot be entering the motorist failed to an intersection where directions before had he The trial court what would have been obvious looked. see given not be without correctly instruction can "[t]his reasoned were, granted in evidence or taking facts for which were not several least, alleged instructions must be dispute.” An error Equip light presented at trial. General of the evidence considered Co., 526, 547-548, Ins. ment Manufacturers Westfield Kiwi, S.A., 594- 635 A.2d 96, Butler allo, denied, not in evi would have assumed facts Since this instruction dence, give such an instruction was not error. the trial court’s refusal

237 charge if the ous, granted only jury a new trial will A new trial will be appellant. have might prejudiced appellant to which the though extent granted even Yamaha is unascertainable. Gallo v. prejudiced had been USA, 308, 321-322, 526 Corporation Motor Pa.Super. 363 (1987). 359, A.2d 366 also: v. Leaphart 539 A.2d at 882. See 453,

Id. at 253, Whiting Pa.Super. 564 A.2d 165 Corp., 387 allo, denied, v. 619, Jistarri (1990); Pa. 525 (1988). An 583, A.2d 210 Nappi, 378 Pa.Super. 549 trial jury instructions constitutes alleged inadequacy if misled the trial probably error what charge is an judge said or there omission Pittsburgh v. to fundamental error. amounts Voitasefski Co., (1949). 370, See 373 Rys. 69 A.2d 363 217, 221, Bonafiglia, 403 Pa. A.2d Sweeny also: v. 169 DiSanzo, (1961); 350, 140 Giorgianni 294 Hajduk Fague, 200 186 Pa.Super. A.2d 802 (1962). rule, a general give 869 As a refusal A.2d a correct requested containing instruction statement new unless the substance thereof ground law is for a trial general charge. has been covered in the court’s otherwise DeLuca, Butler 329 Pa.Super. (1984); Furey University Hosp., v. Thomas Jefferson (1984). A.2d 294-95, Corp., supra v. Fibreboard

Ottavio at Manu- Equipment A.2d at 1301-1302. See also: General Co., Ins. supra at 547- facturers Westfield Huffine, supra 184; Strickler 421 Pa.Su- at Fasteners, 437; Inc. v. Summit per. Co., Inc., Bank & Trust Harleysville National Bailey v. Pennsylvania 206; A.2d at Co., 374, 390-91, Elec. of the

The trial Section 3361 Motor Vehicle judge, quoting Code, § as follows: instructed Pa.C.S. statutory a is also a [djriving speed a vehicle at safe person no shall drive requirement and states follows: prudent at a than is reasonable and speed greater vehicle having regard under the conditions and to the actual and greater that is or at a than potential existing speed hazard stop driver to his vehicle to a within the permit bring will forego- assured clear distance ahead. Consistent with the speed at a safe and ing, every person appropriate shall drive crossing an intersection or railroad approaching when curves, or approaching going when or around crossing, hill traveling upon any when a crest or narrow approaching exist winding roadway special or and when hazards with respect by or other traffic or reason of pedestrians essentially this act highway weather or conditions. So in required by dictates the duties of care someone situations to this case. You must determine whether there related any negligence part parties on the of either of the factor in about the bringing whether it was a substantial from this plaintiffs’ injuries resulting statutory requirement. a motor must at all times exercise operator The of vehicle prudence reasonable care and under the circumstances and car under control that it could be must have his such situation stopped doing injury any person any before to arise from the circumstances. reasonably apt primary duty judge charging of the trial that the clarify legal principles is to involved so that it must decide. may comprehend questions Sedlitsky Pareso, 327, 332, 71, (1993); Pa.Super. v. 425 625 A.2d 74 Lee 430-31, 423, Pittsburgh Corning Corp., Pa.Super. v. 420 616 (1992); Starcher, 1045, v. Spearing Pa.Super. A.2d 1049 367 36, (1987); 532 40 Brandimarti v. Caterpillar A.2d Co., 26, 28-29, (1987), Tractor 136 alio, denied, 517 Pa. The wide variety may any given of circumstances which surround auto presented mobile accident means that the issues each motor inherently specific. vehicle accident case are fact This re quires special part attention on the the trial court identify present jury only the relevant facts and to to the legal principles those which are relevant to the issues raised the evidence in that case. Extended presented particular reflection the issues and scruti- upon presented appeal appellants us to grant law Pennsylvania obliges case ny it well be beneficial trial the notion that prompts new to those intersec legal applicable principles to reiterate parties they claim that had which both tional accidents right-of-way.3 rule, upon which is based

The assured clear distance Code, § requires of the 75 Pa.C.S. Section 3361 Vehicle stop to a capable bringing vehicle driver his/her clearly Springer can see. within the distance that he/she (1993); Dranzo A.2d Luptowski, Winterhalter, 578, 593-94, 577 A.2d Starcher, 25-29, (1990); Spearing 516-20, 38-39; Mickey Ayers, Orluck, (1984); Elder 1202-1203 aff'd, Schriver, 468, 471-74, Brown v. Whitehouse, 463, 45, (1978); Unangst supra at A.2d 47-48 v. Estates, 698; 212, 222 Hershey 344 A.2d at v. Reifel (1972). 214, 138, 139 A.2d it only says: clear distance ahead” means what “Assured assured, is, is that one that can reason- clear distance that The rule does not mean that the ably depended be on. every in his carry possible must mind series motorist him, and he conspire against combinations which could all must solutions to overcome fortui- transport ready-made him. not suddenly tous face Assured does hazards which mean guaranteed. 185-86, Reading, 183, Pa. A.2d City

Fleischman v. (1957) 429, 431 (emphasis original). distance, the of a range

It is driver’s apparent vision, vary according to the at the time and may visibility circumstances, v. Trucking other Stark Fullerton attendant subject suggests long area been 3. Case law that this has one to uncer- Whitehouse, tainty. twenty ago, Unangst Nearly years v. 235 Pa.Su- 695, 458, 463, (1975), per. this Court noted that: presented compelled to In to decide issues here we feel order rulings into attempt to the various one consistent rule consolidate may present applied. be which the factual situation Co., (1935), may “long, 318 Pa. 179 A. 84 and that it be daylight, may road in or it be straight bright as on a storm, fog, a curve the road or other shortened 385, 388, Weinberg, conditions.” Gaber v. 324 Pa. 188 A. (1936). night, At the assured clear distance is the headlights____ scope of driver’s Whitehouse, 463, 344 A.2d Unangst supra v. at at 698. of the assured clear distance ahead applicability Smith v. jury. of fact for the generally question

rule is Brooks, Fish (1990); 575 A.2d Gosnell, 565, 579-80, however, question, only presented This should be trial, the facts introduced at either conceded or where conceivably develop a factual scenario which evokes disputed, There a number of fundamental to the rule. are principles For may applicability. factors which the rule’s ex preclude only objects distance rule ample, applies the assured clear static, essentially including moving are static or vehicles which Evans, in the same direction. McKee McKee v. allo, 150 n. 274 n. 5 denied, (1989); Mickey Ayers, 562 A.2d 824 Orluck, supra Elder v. 1203; supra 485 A.2d at at Schriver, supra Brown 482; 386 A.2d at Whitehouse, Unangst 49; at 699. Furthermore, objects applies only since the rule to those see, should able to prudent which a reasonable and driver be object inapplicable the rule to cases See, e.g.: reason, Stano ahead, for whatever indiscernible. Rearick, Colonial Trust v. Inc., Breuer, 101, (1949); Farley Elmer C. 363 Pa. 69 A.2d 126 Ventresco, (1932); by v. 441, A. 307 Pa. 161 534 Heffner Schad, (1984); v. 1372 Pa.Super. 330 478 A.2d Heffner Schriver, Brown v. supra. in-

Another to the assured clear distance rule exception sudden doctrine which has been defined: emergency volves the and suddenly unexpected- a defense to a defendant who [A]s with a situation that ly perilous finds himself confronted respond no to assess the permits opportunity danger

241 Transportation v. Penn Carpenter Central appropriately. (1979); Co., Stacy v. Thrower 409 A.2d 37 Pa.Super. 269 (1978). Inc., Pa.Super. 384 A.2d 1274 Trucking, 253 a where the successfully applied The is defense doctrine emergency, that he not create the did proves defendant Stout, (1975); Pa.Super. 232 335 741 v. Westerman Rohde, 411, 222 A.2d 434 Pa.Super. Toff Westerman, in a fashion. responded he reasonable where Pennsylvania Company, Railroad supra; Johnson (1960). confronting party A.2d 694 degree expected not to exercise that same peril simply is circumstances. normal and foreseeable care mandated fact, to or even required highest In he is not exercise the therefore, not be judgment; he will ordinary degree extricating judgment mistake of responsible any situation. impending dangerous himself from Co., Downham 308 Pa.Su Gargloff& Trucking Chiodo v. (1983). 498, 500-01, 645, 646 Accord: Papan 454 A.2d per. (1986); Hartman, drea v. Elder, supra; Sagan DeStefano, Co., (1984); Transp. Carpenter v. Penn Central A.2d 828 (1979). “where A.2d 37 The rule arises [withjin form ... of the shortness of time because emergency negli not created his own in an judgment man judicious in the most fails to act gence [the actor] Marian, 18, 19 347 Pa. 32 A.2d ner. ...” Noll (1943). duty perform It the “failure to so sudden implies no arising opportunity that there was ly unexpectedly according exigen and to act to the apprehend the situation Id., 19; Meyer & Moore v. Pa. at cy.” Co., 152,154, Sagan, Power 368, 478 A.2d at 832. Accord Rozzi, McElroy relieve emergency doctrine is to the sudden purpose

“The man stringent reasonable from the sometimes victim with an occurrence that he confronted standard when and act apprehend situation permits opportunity no Pa.Super. at accordingly.” Carpenter, 242

40. It flows from “an occurrence some requiring form of Id., immediate, 16, evasive action.” Pa.Super. 269 at 409 A.2d at 40.

This applied doctrine has been most often in motor vehi cle accident cases where the operator was confronted "with a often perilous, life-threatening situation requiring spontane response ous to avoid the impending danger of a collision. Carpenter, supra. One invoking the defense of sudden emergency responsible cannot be for creating very peril and is ordinarily excused from liability because he lacked the time to react as he would have done under Thus, otherwise foreseéable circumstances. one driving carelessly recklessly or cannot avail himself of the rule’s since, protection, normally, the peril would not have arisen instance. Chadwick v. Popadick, 399 Pa. in the first 88, 159 (1960); Downey Rymorowicz, 397 Pa. 205, 907 Mervis, (1959); Levine v. A.2d 179 373 Pa. 95 A.2d 368 (1953); Arble v. Murray, (1948); Pa. 58 A.2d 143 Randolph Campbell, Nark (1948); 62 A.2d 60 Lines, Inc., Horton Motor (1938); A.2d 655 Verhovsek, Hollern v. 220 Pa.Super. Evans, by

McKee McKee v. supra at 146-48, 551 A.2d at 272- Where a inside emergency sudden arises range previously ahead, assured clear distance the assured clear distance ahead rule is inapplicable, see Dranzo v. Winterhal ter, supra 593-94, at McKee 1357; 577 A.2d at Evans, McKee v. supra Pa.Super. at 150 n. 5; at 274 n. Mickey Ayers, supra 516-20, 336 Pa.Super. at Orluck, 1202-1203; Elder v. 485 A.2d at supra 481-482; Polumbo v. DeStefano, 483 A.2d at Brown v. Schri ver, supra Unangst 48; 386 A.2d at Whitehouse, supra 698; Estates, v. Hershey supra 222 Pa.Super. at Reifel are, A.2d at since rule, the two doctrines a general Evans, McKee McKee v. mutually exclusive. See: Elder v. 5; n. 150 n. A.2d at 274 Pa.Super. at Orluck, 341-43, 481-482; A.2d at supra at 483 Pa.Super. 334 Schriver, 473-77, at supra Pa.Super. 254 at Brown v. 48-49.4 permitted jury to be instructed on which have the

4. There are cases emergency and clear distance ahead rule the sudden both the assured 163, See, Hartman, Pa.Super. A.2d e.g.: Papandrea v. 352 507 doctrine. 822 (1981). 19, Varner, (1986); Potenburg Pa.Super. A.2d 1370 284 424 v. instructions, however, by coupling a was limited those Such of which, disputed at in to in due facts issue those cases situations to the cases, support finding a very could a of the existence of facts which jury. Papandrea emergency question was for See: v. a the sudden 826; Varner, 169, Hartman, supra Potenburg supra v. at at 507 A.2d at Evans, by supra McKeev. at 150 424 A.2d at 1372. See also: McKee 5; Orluck, supra at 483 at 274 n. Elder v. n. 551 at 482. are, however, in which very limited number of factual scenarios There jury presence charges properly given to and it is the of of can be the both these facts which jury charged. A of determine how the review all suggests this has become relevant case law that factual distinction the over time. blurred Note 4—Continued position by begin analysis of We our with the most recent recitation this Hartman, supra, Papandrea in in which the court wrote: this Court v. "[Wjhere emergency to the evidence leaves some doubt as whether an existed, question jury, jury for and the should be there is a fact the on clear distance ahead and sudden instructed emergency both the assured jury the has doctrines. The dual instruction assures that they applicable find the law whatever factual scenario occurred.” Sales, (E.D.Pa.1982), F.Supp. Ernst v. Ace Motor 1226 Cir.1983) (3d (emphasis opinion, 720 without F.2d 661 affirmed original); Potenburg (1981). Varner, Pa.Super. v. Hartman, upon Papandrea supra v. at 507 A.2d at 826. The cases Potenburg court in Ace Motor relied were which the Ernst v. Sales Inc., Varner, infra, supra, Stacy Trucking, Unangst v. v. Thrower Whitehouse, supra. tracing origins, to its seem In the citation trail it would that line Siciliano, originated Casey A. 1 cases plaintiff by passenger was in a car which was struck where the street attempted trolley pass as he the vehicle driven the defendant car, plaintiff injured causing to be when she was thrown from her seat. that, pass trolley, he a child started Defendant claimed started car, creating emergen- move from the curb in front of his a "sudden to cy” any emergency of this relieved him of that existence sudden liability. argued prior negligent driving in Plaintiff that defendant’s pass precluded protection attempting trolley him from the of the that, Supreme emergency Court concluded sudden doctrine. The response his were in to a sudden where a driver claims that actions conclusively emergency and not establish the existence of the facts do jury emergency, question is a for the to decide. such an that Casey jury charge was underlying review of the facts A Casey given reveal obvious and some of the cases which distinctions applied reasoning. Casey have its Not all of the cases which have cited recognized properly endorsing have it cannot be cited as involving on-coming assured clear distance ahead instruction and later- ally-moving Casey actually principles vehicles. The facts of evoke the rule, that, notably, the assured clear distance ahead most the fact at occurred, trolley stationary object. time the accident was a applies only essentially assured clear distance ahead rule to static or Evans, objects. supra static See: McKee McKee v. at 5; Mickey Ayers, supra n. A.2d at n. at 1203; Orluck, supra 485 A.2d at Elder v. 482; Schriver, supra A.2d at Brown v. 386 A.2d at 49; Whitehouse, Unangst supra Secondly, the assured clear distance rule was not even an Rather, given Casey. charge instruction which was to the given alongside emergency general the sudden doctrine was that of a Siciliano, duty Casey of care and control on the road. See: question Pa. at 165 A. at 1-2. The submitted to the precluded whether or not defendant's actions his on the reliance emergency sudden doctrine. Mervis, proposition The second vital incarnation of this was in Levine v. parties 95 A.2d 368 in which the were involved in a Casey, sought protection head-on collision. As in the defendant the Court, emergency Supreme citing Casey, the sudden doctrine the again proper concluded that it was for the decide to if there was any negligence precluded application on behalf of the defendant which emergency Casey, of the sudden doctrine. As in there was no mention rule, of the assured clear distance ahead nor could there have been since the accident involved a head-on collision. The anomalous and intricate nature of the issue is first revealed in Estates, Hershey supra, appellant traveling v. where the was on a Reifel and, intersection, approximately road when 70 feet from an noticed that appellee stopped stop sign a truck driven the had at a which was set approximately point back 30 feet from the where the two roads inter- appellant appellee begun slowly sected. The noticed that the had to but, proceed assuming appellee yield into the intersection that would right-of-way, appellant slowing the continued on without down and appellee’s struck truck when it did in fact enter the intersection. The doctrine, charged emergency trial court the on both the sudden appellant claiming emergency, that she was faced with a sudden the assured clear distance ahead rule. Levine, Reifel, citing Casey correctly This Court in stated that since emergency reasonable minds differ as to whether a sudden actual- existed, ly properly jury. that determination was left to the This Court on, however, that, went to conclude since it was debatable as to existed, emergency proper whether a sudden charge it was also to the jury on the assured clear distance ahead in the event that there was no Estates, emergency. Hershey supra v. at Reifel First, approval presents difficulty. A.2d at 140. That a certain as the applies only essentially objects, rule inapplica- to static or static it was ble to this situation in which the vehicles were in motion and were perpendicularly positioned. Secondly, at distance ahead but entry within the assured clear was made [i]f in sufficiently driver time distant to still allow the point sufficient duty imposed the assured clear stop, is not that of general duty control of of care and rather that distance rule but (1960)]; see 161 A.2d 22 v. Stout [400 See the road. Enfield Miller, Wells 260 Iowa 151 N.W.2d also Reich v. Wildin, (1938). v. Morelli Greene 224 Iowa 277 N.W. Cf. Bros., (3d Cir.1972)]. clear distance The assured [463 F.2d instrumentality moves into applicable an is thus not where ahead rule clear distance path distance short of the assured driver’s within a Verhovsek, [220 ahead. Hollerne (1971)]; Texaco, Inc., Cir.1967)]. (3d F.2d 978 [377 Mihalic v. Whitehouse, supra 344 A.2d at Unangst at did the record (emphasis supplied). This Court in concluded that Reifel existed, emergency indication that the court suggest that an not and, stop” appellant time in which that had “sufficient believed therefore, general duty not the assured of care and control —and applicable. ahead rule—was clear distance approved was this which both instructions were The next case in in Inc., opinion Stacy Trucking, v. Thrower court’s upon by a Though this case was later relied A.2d 1274 circumstances, that, proposition for the certain number of decisions it is and the charge assured clear distance ahead proper on both the Varner, doctrine, see, Potenburg supra 284 e.g., emergency sudden fact, court, no Stacy reached Pa.Super. at Rather, appellant’s on issue addressed was based such conclusion. appellee had appellee’s testimony own established claim negligent he could not operated vehicle in a manner and thus his Stacy emergency See: v. Thrower protected Trucking, the sudden doctrine. Inc., at The supra charge appellant challenge the ahead did not assured clear distance although charge court did not address the issue and this sliding given, truck improperly since an over-turned cement mixer hardly “essentially is static”. four lanes of traffic “static” or across Varner, Potenburg complexity of the issue further revealed Stacy of the law to supra. While the court in confined its statement situation”, Inc., Stacy Trucking, v. Thrower "this Potenburg, universally applicable: this Court cited the rule conclusively the existence of Where the facts do not establish emergency, proper charge jury it is to the on both the assured sudden emergency order that and the sudden doctrine in clear distance rule they jury applicable apply law to to the facts as find them. the Stacy has the Inc., Trucking, supra. v. Thrower Varner, Potenburg supra 1372. Though Papandrea our cases is we arrive at v. Hartman. Thus it that repeated rule and the have that the assured clear distance ahead mutually emergency generally exclusive instruc doctrine are sudden Evans, tions, by supra Pa.Super. at 150 n. McKee v. see McKee 5; Orluck, supra Pa.Super. at 551 A.2d at 274 n. Elder 341— 473-77, 481-82; Schriver, supra Pa.Super. at 483 A.2d at Brown the same instructions are often included in 386 A.2d at the two Thus, relatively jury charge. emphasis that the situations are it merits charges given. may properly be rare in which both is, rely a explanation perhaps, upon to manner of The more effective hypothetical: accident, Generally, in an intersectional “the applica tion of the assured clear distance ahead rule on depends proceeding whether the vehicle into the intersection arrived lane point the at a outside of or within approaching an Unangst motorist’s assured clear distance ahead.” v. White house, Pa.Super. at facts 700.5 The of the instant a present case breed of intersectional automobile accident familiar to any driver —both drivers almost simulta neously the perpendicularly-situated enter intersection from roads, they and both claim did so because had the they green exists, If light.6 specific this factual scenario jury the cannot be on the charged assured clear distance ahead rule. traveling Two cars are in the A, highway. same direction on a one-lane front, stops abruptly The car in second car by and is rear-ended car, car B. The driver of car A claims that a deer ran front creating her emergency reasonably of car a sudden to she responded under the circumstances. The driver of car B that claims anywhere deer did not come near A's vehicle it A’s and was driver negligence which caused the accident. Driver A in turn that claims following closely negligent driver B was too and it was this act which caused the accident. hypothetical, conclusively In this the facts do not establish the existence emergency. jury anof The would have first to determine if an such emergency protect by existed which application would driver A the emergency sudden the mine if driver B was in doctrine. The would then have to deter- violation of the assured distance clear rule direction, following closely traveling too to a car in the same an essentially object. static therefore, hypothetical, necessary

The contains the elements for both (1) given: a instructions to be claim one driver she to a that reacted emergency may sudden where reasonable minds as to differ whether existed, (2) emergency actually inspires the element which discussion, namely, entire a situation in which it must if determined capable stopping one driver should have been within the assured a essentially object. clear distance of static or static affirming In trial court’s instruction of the assured clear ahead, Unangst distance court emphasized v. Whitehouse that undeniably emergency record did not indicate that sudden existed. (1) concurring quite perceptively 6. The statement concern voices that since term "intersection” is used in section 3361 of the Vehicle Code, (2) inherently since intersection dangerous ”[a]n is an more stretch of possibility road than others because of that vehicles approaching stop suddenly the intersection have to when another yield right way”, vehicle fails it follows that the assured clear applicable distance rule ahead is intersections. concern expressed persuasive prudent in such fashion it express seems sharing pause the bases for Firstly, the concern. when the text of entirety, requirement section 3361 is read in its it is evident that the operate appropriate speed driver “shall at a safe and when already mentally the driver has a circumstance In such interjection of ahead and the sudden the distance cleared not within range thereof is instrumentality within ahead] clear distance imposed by the duty [assured specific rule. Whitehouse, (empha 344 A.2d at 699

Unangst jury on Thus, charge the it was error to supplied). sis case, facts of this rule.7 Given the assured clear distance judge of the trial the decision possibility that there exists the rule ahead clear distance on the assured to instruct clarified, jury. for the Since confused, the issues rather than affected substantially8 have charge the erroneous new and remand for a verdict, to reverse we are constrained trial. Jurisdiction for new trial. remanded vacated. Case

Order relinquished. J.,

HOFFMAN, concurring files a statement. to the crossing is to in addition approaching an intersection” § requirement. 75 Pa.C.S. ahead See: clear distance assured ("Consistent Secondly, foregoing...."). the notion that with the applies overlooks to all intersections clear distance ahead rule assured lights regulated traffic those roads which are distinction between not, has caused this Court a distinction which and those which are light-regulated is duty in intersection a traffic observe that the driver’s heightened, but limited. not imposed upon a care degree same To hold that there any way light right would one without motorist with a favorable lights the flow of traffic. purpose of traffic to facilitate thwart the Co., Pittsburgh Railways Escher objection both before and Appellants to this instruction voiced their given. it was after acknowledges dissenting thoughts Saylor his 8. The author Rose, for a afford a basis evidence inconsistency there is insufficient charge would assert —but display. conviction of such HOFFMAN, Judge, concurring: applaud clarify I to the majority’s scholarly the efforts of the “assured clear ahead rule” and to application distance emergency delineate its with the “sudden interrelationship I the agree majority doctrine.” also with that the assured and, clear distance rale is to instant case inapplicable the therefore, I agree majority’s with the of a new trial to grant However, my I appellant. separately write to indicate dis- agreement majority’s with the characterization of the rale as it laterally moving to applies general- intersections vehicles ly. four, majority

In footnote the out there correctly points tendency, erroneously, been a give has sometimes to a instruction clear concerning simply assured distance ahead a jury requested because instruction is regarding sudden rale, emergency. general majority, The as the stated mutually However, that the two doctrines are in its exclusive. of I the in Reifel, majority sugges- discussion believe errs its that the clear rale apply tion assured distance ahead does not positioned to vehicles perpendicularly at intersections. The majority states that the clear assured distance instruction was “[f]irst, Reifel, in inappropriate applies only the rale to or essentially objects, inapplicable static static it was in the situation vehicles were in motion and were perpendicularly positioned.” I

Initially, note that the statute specifically makes reference of application to the the assured clear inter- distance rule to § sections. 75 Pa.C.S. 3361 provides: “Consistent with the foregoing, every person shall drive at a safe when speed intersection____” Thus, crossing approaching an the clearly contemplates statute of application the rale intersections, some are in traveling where vehicles a perpendi- Moreover, cular direction relative to each other. in Unangst, majority which the relies upon, clearly court stated that the assured clear distance can apply rale intersections in in where vehicles were both motion and traveling perpendicular Unangst, fashion. Stout, 400 Court, of in its discussion Unangst Enfield for the explained applica- the reason follows: the rule to this situation as

tion of does not moving was The fact that the obstacle Enfield included with- “moving” objects are indicate that necessarily case, object It must be noted that in the rule. path truck, moving across the intersection was movement, point from car. This lateral oncoming time-distance, is moment. of little calculation of view the object because essentially a static The truck Enfield dis- assured clear nothing to reduce the movement did its oncoming car. ahead tance at 700. This characteriza- Id. akin to a across an intersection as traveling tion of a vehicle regards the assured legal is a sensible fiction object static rule, with the it is consistent clear distance ahead because to of the rule is ensure purpose of the rule. The purpose stop a driver to “such control be maintained as will enable his Mickey fall vision.” avoid obstructions that within (quoting Unangst Ayers, at 485 A.2d at 698). inherently An is an more intersection of possibili- of road than others because dangerous stretch stop approaching the intersection have to ty that vehicles way. of yield right to suddenly when another vehicle fails regard: has stated Pennsylvania Supreme Court on a through highway of While the driver an automobile highway on approaching assume that one may properly duty stop yield will his stop perform legal street ..., through way right-of-way on a of still the right the driver of an automobile qualified is a one and highway to the regard control and precautions thereon must take ap- car and alert lookout cars keeping of his speed prudent man intersection as a reasonable proaching safety. of his solicitous own Thus, I believe that the Pa. at 25.

Enfield application the assured majority’s regarding statement intersections, moving vehicles clear distance ahead rule to be our unsupported by caselaw and to fail adequately cogent address the reasoning Unangst. Enfield Joyce FENGFISH, Appellees, David and DALLMYER, Appellants. Herbert and Louelle Superior Pennsylvania. Court

Submitted Feb. 1994. Filed June

Case Details

Case Name: Cannon v. Tabor

Court Name: Superior Court of Pennsylvania

Date Published: Jun 1, 1994

Citation: 642 A.2d 1108

Docket Number: 02708

Court Abbreviation: Pa. Super. Ct.