417 Pa. 26 | Pa. | 1965
Lead Opinion
Opinion by
Truck Power, Inc. and Harry Sweeney appealed from judgments entered on the verdicts after refusal of motions for new trial and for judgment n.o.v. On February 14, 1961, Kenneth J. Fisher, operating a tractor-trailer owned by Frank Luster and leased to Flemington Transportation Company, Inc., was eastbound on Route 11, about 7 and one-half miles west of Carlisle in Cumberland County. The highway at this point is macadam black top, 24 feet wide, divided by a broken white line creating two lanes of traffic each 12 feet wide. The Flemington vehicle was ascending a long grade of approximately 1900 feet, and when about 500 feet from the crest of the hill, the motor faltered, due to a malfunctioning fuel pump. The driver, Fisher, drove the vehicle to the right on to the berm, as far off the road as possible. There being a snow bank about 5 feet south of the paved portion of the road, Fisher could not get his vehicle completely off the road, and the vehicle was stopped parallel to the highway with 4 feet on the paved portion and 4 feet on the berm. It was about 7:00 o’clock in the evening when the truck stopped, and Fisher put out a lighted flare before leaving the vehicle to walk to a motel where he called Truck Power, Inc. for a service truck to come to his equipment for the purpose of getting it started. Fisher returned and found that the flare which he had set had gone out. He set another flare, with a life of about 20 minutes, and this also burned out while he was waiting for the service truck to ar
. Oliver McDonald, operating a tractor-trailer for Novick Transfer, Inc., was westbound on the highway and, at about 8:40 p.m., came over the brow of the hill and approached the place in the highway where the Flemington and Truck Power vehicles were stopped on the south side of the highway. ' When he had progressed about half the distance from the brow of the hill to where the vehicles were stopped, he saw them. About the same time, William Richmond Smith was ascending the hill eastbound, operating a tractor-trailer owned by Thomas M. Williams and leased to Dolly Madison Bakery. McDonald, realizing that he and the oncoming vehicle would arrive at the same time at the point on the highway where the disabled vehicle and service truck were stopped, turned his headlights on and off, in an attempt to warn the driver of the eastbound vehicle, and drove his tractor-trailer as far to the right as snow piled along the side would permit. The bakery vehicle struck the left rear of the disabled Flemington tractor-trailer, tearing along the side of it and pushing it and the service truck forward. It came to a stop about even with and parallel to the Flemington tractor. The driver of the bakery tractor-trailer, Smith, was throAvn from the cab ■ against the
Thomas M. Williams, the owner of the equipment, leased to Dolly Madison Bakery and operated by Smith, brought suit to recover for the damage to his property. Betty Sue Smith, the wife of William Richmond Smith, brought a survival action and an action for wrongful death. The cases were consolidated for trial. The amount of damages in the Williams case was stipulated and, in the Smith case, it was agreed that all of the damages should be consolidated in the wrongful death action. The jury returned a verdict in favor of Betty Sue Smith against the defendants, Flemington Transportation Company, Inc., Frank Luster, Kenneth J. Fisher, Truck Power, Inc., and Harry Sweeney, and a verdict in favor of the defendants, Novick Transfer, Inc., and Oliver McDonald. The jury returned a verdict in favor of Thomas M. Williams against the same defendants and in favor of Novick Transfer, Inc., and Oliver McDonald. By agreement of all of the parties in interest, the verdict against Frank Luster was set aside, and after appeal, the plaintiff, Betty Sue Smith, as trustee ad litem, with the approval of the court, executed and delivered to Flemington Transportation Company, Inc., and Kenneth J. Fisher, a release in accordance with the Uniform Contribution Among Joint Tortfeasors Act. We have for consideration the appeal of Truck Power, Inc. and Harry Sweeney.
Appellants raised four questions decided adversely to them in the court below. (1) No liability is in
The trial judge did not submit the question of statutory duty under The Vehicle Code.
Several minutes elapsed from the time Sweeney arrived at the scene of the disabled vehicle until the accident. That he was aware of the dangerous situation is evident from his discussion with Fisher. Sweeney and his employer, Truck Power, were engaged in the business of rendering service to disabled vehicles for compensation. Appellants were not mere volunteers who happened on the scene as good Samaritans. Appellants contend that there was no breach of a legal duty in not placing the flare and the jury should not be permitted to find an act or omission negligent when, there is no legal duty on appellants and, therefore, the-jury should not be permitted to pass upon the matter when there was no breach of duty. Appellants, in the performance of their business of rendering services to disabled vehicles on the highway,- owe a duty to users of the highway, and whether the proper standard of' care has been exercised in the discharge of that duty is properly a question for submission to a jury. Under the circumstances of this case, the question was properly -submitted to the jury, and the court was correct in refusing appellant’s motion for judgment n.o.v. Cf. Morris v. Lipkin, 317 Pa. 422, 176 A. 434 (1935). See also, Restatement, Torts, §289. The business -of supplying emergency service to disabled vehicles on the highway must certainly bring the realization to the service man that a disabled vehicle may be a hazard to the users of the highway. Sweeney realized this hazardous condition when he arrived at the Flemington vehicle disabled on at least four feet of the paved section of the highway, on a dark night.
Taking the question from the jury would have deprived decedent of the benefit of the full presumption that he is entitled to, for had he lived and was in fact blinded by the headlights of the oncoming vehicle, he would be entitled to place that matter before the jury for its determinations of the factual matter. This he would be denied by reason of his death. The trial judge properly submitted it to the jury. This case is distinguishable from Griffith v. Weiner, 373 Pa. 184, 95 A. 2d 517 (1953). As was said by Mr. Justice, now Chief Justice Bell, page 186: “The night was clear and there was no obstacle to obstruct the decedent’s vision before he hit the truck; and no automobiles which might have blinded decedent were approaching from the opposite direction”. There were elements present in the instant case which could prevent the decedent from discerning what was ahead of him. The uncontradicted testimony showed that the night was dark and there was no moon. The dark colored disabled vehicle was on an incline and would not present a silhouette, and the oncoming vehicle, with lights flashing on and off, could well have prevented decedent from seeing the disabled vehicle. The jury could have found such a condition to have existed and did by its verdict. The trial judge fully and ably presented the problem to the jury in a lucid charge.
In Maranca v. Philadelphia, supra, a recovery was allowed where a plaintiff drove into an unlighted obstruction on the highway, in the form of a ridge of earth and cobblestones approximately 3 feet in heighth and extending over 50 feet from the side of the street, the ridge of dirt and paving stones being undiscernible with the lights of other vehicles coming toward the
Appellants further maintain that the decedent is not entitled to the presumption that he reduced the speed of his vehicle immediately upon being blinded by the lights of the approaching vehicle. They maintain the presumption of due care was afforded the status of evidence and additionally, that the trial judge did not properly charge the jury in this respect. The judge charged on this point in the following language: “Once again, if you reach the conclusion that Mr. Smith should have seen this vehicle before this occurred, then even though you find the actions of McDonald blinded Mr. Smith, you would be warranted in finding that his actions were not the proximate cause of the accident that ensued. If he should have seen it, even though he was blinded; if he should have seen this vehicle and have slowed to avoid any contact with it prior to the blinding, then the blinding was not the thing that caused the accident.” And again: “If an individual is traveling at such a rate of speed as makes him negligent prior to the time of his blindness, then he is unable to take advantage of this particular rule for the simple reason it is not the blinding that causes the result, but the excessive speed.” The charge was proper and if counsel wished additional instruction, the point should have been called to the attention of the judge since he indicated he would give additional instruc
The plaintiff’s decedent is entitled to the presumption that he exercised due care while driving within the assured clear distance, and to the presumption that he slowed down when blinded. In the absence of evidence to the contrary in the plaintiff’s case, the presumption of due care, in the instant case, includes the concept of driving carefully within the assured clear distance ahead; the concept of slowing down when blinded, and the concept of heeding the futile flashing light warning given by McDonald. “Every rule that one can conceive which is designed to protect and preserve human life is presumed to have been respected by the decedent. . . ”. Keasey v. Pgh. & Lake Erie R. R. Co., 404 Pa. 63, 170 A. 2d 328 (1961).
McDonald, the westbound truck driver, attempted to warn the decedent, Smith, by turning his headlights off and on. The trial judge permitted an ophthalmologist to testify as to the effect of the headlights of an oncoming truck being turned on and off on the eyes of a truck driver approaching from the opposite direction. The substance of the testimony was that: “. . . exposure of the eyes to a bright light temporarily removes the power to see in dim light. This is explained by a mechanism of the eye called adaptation. There are two functions. The pupil of the eye is a self regulation aperture to admit the light to the eye, and the retina — and the adaptation of the retina is a self adjusting variation of the sensitivity of the eye. This adaptation takes place very quickly to light. It is called light adaptation. Conversely, the adaptation to dark or dim adaptation takes considerable length of time. You all experience this when you go into a movie house. When you first go in, everything is
Judgments affirmed.
The Vehicle Code of April 29, 1959, P. L. 58, §836, 75 P.S. §836, provides, inter alia, that the operator or other person in charge of a vehicle having a registered capacity of 11,000 lbs., or more, parked on the main traveled highway during the period when lighted lamps must be displayed on vehicles, shall cause flares, lanterns, etc., to be placed on the highway 100 feet in the front and rear of such vehicle.
The Vehicle Code 1929 P. L. 905, §1002(a), as amended, 75 P.S. §1002(a).
See Watkins v. Prudential Ins. Co., 315 Pa. 497, 173 A. 644 (1934).
Dissenting Opinion
Dissenting Opinion by
In the absence of a factual determination that Truck Power was in charge or in control of the disabled vehicle at the time of the accident, there is no basis for imposing liability upon appellants.
The court below opened that portion of its charge relating to the liability of Truck Power with: “There is no statute that requires a service vehicle of that type to be equipped with flares . . . .” With specific regard to service vehicles, that aspect of the charge is accurate as far as it goes. However, The Vehicle Code does cover the situation in general terms. Section 836(b) of the Code, April 29, 1959, 75 P.S. §836,
The crucial issue under the statute is whether Truck Power had assumed control of the disabled vehicle and was under the statutory duty, as mandated by the Code, to cause flares to be placed on the highway at the front and rear of the disabled vehicle. That basic question admittedly was not submitted to the jury nor was it admitted of record.
The court below did charge as follows: “There is no statute that requires a service vehicle of that type to be equipped with flares but in your judgment would somebody who is in this business of going out to service trucks — and it was night time when the call was made —go prepared with flares to take care of lighting up any disabled vehicle they found, and if you find that a reasonably careful and prudent person under those circumstances would have gone so prepared, then the failure either to have them or the failure to put them out, if they did have them, would constitute negligence; and again you have the problem — was this negligence a proximate cause?”
Even assuming, as the majority holds, that such a common law duty is imposed upon a firm which provides highway service, the court below failed to instruct the jury as to that point in the course of conduct at which liability for breach of that duty may be incurred. Surely, such duty cannot be said to have been breached prior to the time at which the operator
In my opinion, a breach of tbe duty imposed by tbe majority upon Truck Power cannot be found, either under tbe statute or common law, unless it first be determined by tbe jury that tbe driver for Truck Power did, in fact, take charge of tbe disabled vehicle. The record is clear that this issue was not submitted to tbe jury and no such finding was made.
Tbe error below may be corrected only by the grant of a new trial. Therefore, I dissent.
This provision was amended subsequent to tbe aeeident here in question. However, there was no change with respect to the individual upon whom rests the duty to place the warning lights or flares.