167 A. 583 | Pa. | 1933
Argued April 19, 1933. Plaintiff brought this action to recover damages for the death of her husband, due, so she alleges, to the negligence of an employee of defendant. As the accident which caused his death took place in the State of New Jersey, she sues as administratrix ad prosequendum. The jury found a verdict in her favor. Judgment non obstante veredicto for defendant was entered by the court below. Plaintiff appeals.
On the night of December 19, 1929, plaintiff's husband was driving a large six-wheeled truck, weighing with its load about seventeen tons, along the Lincoln Highway from Philadelphia to New York. The truck was 35 feet long and 10 feet 6 inches high. About 10 o'clock he reached a low point in the road known as Mutton Hollow. It was a drizzly, rainy, very foggy night. Deceased stopped his truck in the hollow, apparently because the lights had gone out. The highway was composed of a central strip of concrete and two outside strips of asphalt. It was wide enough to carry four trucks abreast. Instead of pulling over to the right side of the road and parking his truck longitudinally at its edge, or even more prudently placing it on a concrete strip 56 feet long and 8 feet 6 inches wide which extended beyond the roadway, within a few feet of where he did stop, the deceased brought the unlighted vehicle to rest with its right front corner at the curb and the *132 body extending diagonally out into the roadway as far as the center thereof, thus occupying the entire space allotted to vehicles traveling on that side of the road. Just how long the lights had been out or the truck had been standing in this position before the accident happened was not shown and is left to conjecture.
Walter Saville, a witness who testified in plaintiff's behalf, was driving the last truck of a fleet of trucks proceeding in the opposite direction from that of the deceased. He observed the apparently unlighted truck as he passed it, stopped his own about 40 feet beyond, and taking a lighted red lantern in his hand walked back to the standing vehicle. When he reached it, he observed that it had no lights whatever. He walked around it and came upon the deceased, who had three unlighted lanterns in his hand which he had picked up from a stone pile alongside the road. He observed the deceased put two of these lanterns in the cab of his truck. Saville offered deceased the lighted red lantern which he, Saville, was carrying in order that it might be hung on the rear of the truck, saying to him, "If I were you I would put the ones back on the stone pile and I will give you this one. It may protect somebody else coming over the hill." He described deceased as having "got a little boisterous. When I seen he was that way I walked away from him. I just walked up the hill. I said a couple of words back to him and walked up the hill with my lantern. When he would not accept my light I started up hill to my truck to put it back where I got it."
When Saville walked away from the deceased the latter was engaged in bending the handles on the rear of the truck to hang the still unlighted lantern on. As Saville walked up the hill, he observed a little flicker of light which he concluded was from a match with which deceased was about to light the lantern on the back of his truck. Just then he saw the two headlights of defendant's truck "coming over, out of the fog, down *133 the hill," about 20 feet away. Saville was then off the road, on the side, about 20 feet from deceased's truck. He testified, the oncoming truck was running about 15 miles an hour. He "hollered" to the deceased and to the driver of the truck approaching, "Look out." The truck passed him and crashed into the stationary one, killing the deceased, who was still at its rear. Saville said he thought the driver of the moving truck did not hear his call and the latter testified he did not, and that he did not see Saville.
Defendant's driver said the fog was very heavy, of the kind that blinded his lights; that as he approached the scene of the accident, and when about half way down the hill, he saw a little flicker, like that of a match, and applied his brakes, and that he was not over 6 or 8 feet from the truck when it loomed up in front of him and he realized it was there. He fixed his speed at 12 to 15 miles an hour and the weight of the truck at about 7 tons. He did not see the deceased until just as he struck him. He gave the distance which he could see in front of his truck as 6 or 8 feet and his stopping distance at the speed he was traveling as about the length of his truck, 18 or 20 feet. He further said he could not stop his truck within the range of his headlights. He was quite seriously injured.
The New Jersey Statute (Act of July 14, 1928, page 728, chapter 281, article VI, section 1) provides: "The operator of a vehicle shall not stop, stand or park such vehicle in a roadway other than parallel with the edge of the roadway headed in the direction of traffic; on the right hand side of the road, and with the curb side of the vehicle within six inches of the edge of the roadway . . . . . ." Section 2, "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off the paved or improved or main traveled *134 portion of such highway; provided, however, that in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway, unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in each direction upon such highway." The New Jersey Statute of 1921 (Cumulative Supplement to Compiled Statutes of New Jersey, 1911-1924, volume 1, page 1983) stipulates that motor vehicles "shall also exhibit a red light visible from the rear; the rays of such rear lamp shall shine upon the number plate carried on the rear of such vehicle in such a manner as to render the numerals thereof visible for at least fifty feet in the direction from which the motor vehicle is proceeding."
Appellant's counsel urges upon us that, as the accident occurred in the State of New Jersey, all questions of negligence, contributory negligence and proximate cause are to be determined by the substantive law of that state, and presents for our consideration numerous decisions of the Court of Errors and Appeals of New Jersey, which he contends hold that such questions are solely for the jury in cases involving highway collisions. We do not read these cases as establishing the principle as broadly as stated, nor do we think any of the cases cited from that jurisdiction disclose the exact factual situation here presented, — proof in the plaintiff's own case that his unlighted truck was parked diagonally across the highway, taking up one-half of it. Thus in Osbun v. DeYoung,
None of the New Jersey cases called to our attention rules that in every case the question of contributory negligence is for the jury. Thus in Dickerson v. Mutual Grocery Co.,
Appellant's contention, that the primary negligence was that of defendant's driver, in proceeding at a speed which did not permit him to stop within the distance covered by the range of his lights, cannot prevail. The proximate cause of the accident, the causa sine qua non, was the gross failure of duty on the part of the deceased in parking his unlighted truck in the unlawful manner he did, and in placing himself in a position of obvious *138
danger at its rear without indicating his or its presence by a warning red signal light which might have given notice to the oncoming driver of the peril in front of him. It cannot be convincingly said that deceased did not have time to give warning. He could sooner have lighted one of the lanterns which he had in his hands, or, better still, have taken the one proffered by Saville, and with it given signal. The driver of the approaching truck and Saville both saw the flicker of light made by the striking of the match; had a red lantern been used as a danger signal, it is apparent the former would have seen it, and had the one offered by Saville been promptly accepted when he pointed out the danger to approaching cars, defendant's driver would in all probability have had sufficient warning to have controlled his truck and thus have saved the life of the deceased and injury to himself. The situation reviewed by the Court of Errors and Appeals of New Jersey in Seibert v. Goldstein,
It only remains to deal with the contention of counsel that under the doctrine of our recent decision in Harkins v. Somerset Bus Co.,
Some point is made by appellant of the fact that the deceased stopped his truck in the vicinity of an electric light which projected from a pole on the opposite side of the road. It is argued that if the deceased had pulled his truck further up the road and brought it into the curb, he would have lost the benefit of the illumination which the street light threw upon the rear of the truck. This light played no part in the accident. Plaintiff in her own case by the testimony of Saville showed that owing to the fog the electric light did not light up the road at all. This was corroborated by a state policeman, another witness called by plaintiff, who reached the scene of the accident shortly after it happened.
The judgment is affirmed. *140