14 A.2d 608 | Pa. Super. Ct. | 1940
Argued April 25, 1940. This is an action in trespass brought to recover damages for personal injuries to minor plaintiff resulting from the collision of the automobile which he was driving and an automobile owned and operated by defendant. At the time of the trial minor plaintiff had attained his majority. At the close of plaintiffs' case defendant offered no testimony, but presented a point for binding instructions, which was refused, and the case was submitted to the jury. The jury returned a verdict in favor of John G. Lauerman, a minor at the time of suit, in the sum of $300, and a verdict in favor of Victor W. Lauerman and Elizabeth Lauerman, parents, in their own right, in the sum of $900. This appeal by defendant is from the refusal of the court below to *242 enter judgment in favor of defendant notwithstanding the verdicts for plaintiffs.
On July 7, 1936, at about 6:15 a.m., minor plaintiff was operating an automobile on the public highway, route No. 31, between West Newton, Westmoreland County, and Monongahela City, Allegheny County. While descending what is known as Deep Cut Hill, at 25 or 30 miles an hour, he rounded a curve and discovered a dense fog which was then 15 or 20 feet from him. Upon seeing the fog he applied his brakes and reduced the speed of his automobile. After traveling two or three car lengths into the fog, he collided with the rear end of the automobile of defendant, which was stopped on the right side of the white center line of the highway. Minor plaintiff said that "the whole valley was filled with fog" that morning; that he did not see the fog until he got 15 or 20 feet from it; and that this failure must have been due to the reflection of the sun on the fog. From the top of the hill to the place where the accident happened was about 450 feet. The curve starts about 150 to 200 feet from the place of the accident. The accident was about 45 or 50 feet from the end of this curve near the bottom of Deep Cut Hill. Minor plaintiff entered the fog bank at about 15 miles an hour; it was so dense that there was no visibility beyond 10 feet. Two other automobiles following minor plaintiff entered the fog bank, the first automobile striking the rear bumper of minor plaintiff's automobile, and the second striking the rear bumper of the first. The driver of the former admitted that he could not stop within the distance that he could see.
The record does not disclose how long defendant had stopped before the collision occurred. There was testimony that two men were out of defendant's automobile wiping off the windshield. Defendant's automobile was standing still on the highway, but how long it had been *243 there does not appear, and no other reasons were given for stopping.
Defendant contends that there was not sufficient evidence of his negligence to submit to the jury, and that plaintiff was guilty of contributory negligence as a matter of law. We do not deem it necessary to pass upon the sufficiency of the evidence of defendant's negligence, although, for a motor vehicle to stand still in a fog bank in a proper position on the proper side of the highway for a reasonable length of time for any legitimate reason is not in itself negligence, as fog may be so dense on the highway that to proceed at any rate of speed is imprudent.Shoffner v. Schmerin,
Having reviewed the evidence in the light most favorable to plaintiffs, we are obliged to conclude that minor plaintiff was contributorily negligent as a matter of law, and that judgment notwithstanding the verdicts must be entered in favor of defendant regardless of whether or not there was evidence of his negligence.
The driver of a motor vehicle on the highway must have it under such control as will permit him to bring the vehicle to a stop within the "assured clear distance ahead." This was the statutory requirement at the time of the accident. Section 1002, art. 10, of the Motor Vehicle Code of May 1, 1929, P.L. 905, as amended by the Acts of June 22, 1931, P.L. 751, § 2, and July 16, 1935, P.L. 1056, § 29, reads in part as follows: "(a) . . . . . . no person shall drive any vehicle upon a highway . . . . . . at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead." This, as held in Starkv. Fullerton Trucking Co. et al.,
Referring to section 1002 of the Motor Vehicle Code, supra, 75 Pa.C.S.A. § 501, our Supreme Court said, in Stark v. Fullerton TruckingCo. et al., supra,
The conclusion is inescapable that minor plaintiff was either driving his automobile at too great a speed to enable him to stop before meeting defendant's automobile obscured by fog, or he was not paying proper attention to the roadway which the conditions required. Hutchinson v. Follmer Trucking Co.,
Assignments of error are sustained.
Judgments are reversed, and judgment is here entered for defendant. *246