199 A. 220 | Pa. | 1938
Defendant frankly admits that its driver was negligent, as well it might since that fact is established by the verdict based on substantial testimony. The sole question for decision is the alleged contributory negligence of plaintiff, which we are asked to declare as a matter of law, the jury having found otherwise. After the entry of judgment, the court en banc having refused *552
defendant's motion for judgment non obstante veredicto, this appeal was taken. The facts are brief, and we shall consider them in the light most favorable to plaintiff as we are required to do: Donze v. Devlin,
The place of the accident was the Lincoln Highway, in Lancaster County, just east of the village of Kinzer, and the time, two o'clock on the morning of January 17, 1936. A ten-ton truck, with trailer attached, owned by defendant and operated by its employee, stalled upon the highway, and at a point where it was invisible to traffic approaching from the opposite direction until such traffic crossed the crest of a hill a short distance from the truck, said to be about one hundred and fifty feet. The plaintiff drove his car over the crest of that hill, at a speed of about twenty miles an hour and at once saw the truck, with its headlights burning, standing in a normal position on its right side of the road. He did not immediately see the trailer, attached to the rear of the truck and "sprawled across the road," because there were no lights upon it, and it was further obscured by the glare of the truck's headlights. When it was visible to plaintiff he attempted to stop his automobile, but was unable to do so because of the "very slippery" condition of the highway, caused by snow and ice which had accumulated there. The automobile slid downgrade and struck the trailer, which completely blocked the road. The lights on plaintiff's car were burning and he could see a sufficient distance to permit him to stop his car and avoid the collision had it not been for the misleading appearance of the position of the truck, the almost hidden trailer, and the icy condition of the highway. The same condition of the highway caused the truck to stall while climbing the hill.
We will not declare a person guilty of contributory negligence as a matter of law unless the evidence of his negligence is clear and unmistakable: Murphy v. Bernheim Sons, Inc.,
The plaintiff was not bound to anticipate negligent conduct on the part of defendant's driver. That the driver was negligent, in failing to light any flares or to take other action to warn approaching traffic, is admitted. Defendant says the sole question involved is whether plaintiff presented facts which would take his conduct from under the rule that a person operating a motor vehicle at night must so drive that he can stop his car or change its direction to avoid collision with any obstacle or obstruction that appears within the range of his headlights: Simrell v. Eschenbach,
Gaber v. Weinberg,
Judgment affirmed. *555