Turner v. SMITH , 237 Pa. Super. 161 ( 1975 )

Opinion by

Jacobs, J.,

This case arose from an automobile collision which occurred on June 11, 1971, when a sedan driven by appellant Terry Lake and a pickup truck driven by appellee Charles Smith met head-on near the intersection of Route 624 and Gay Street, York County, injuring the occupants of both vehicles. Three trespass actions were thereafter brought and consolidated for trial. The jury denied appellant Lake recovery in his suit against appellee Smith and found against both drivers in the suits filed by appellant’s passengers.

Appellant has appealed from all three judgments, claiming that the court erred in its charge. We agree with appellant’s assignments of error as to the charge and we reverse and remand for a new trial with respect to the judgments entered against appellant in each of the consolidated cases.

Appellant’s specific contentions are that the court below should not have applied the “assured clear distance ahead” rule¹ to the facts of this case and that the trial court erred in its refusal to instruct the jury as to the effect of one driver’s reckless driving on that driver’s defense of contributory negligence. We will discuss both of these issues after a brief summary of the relevant facts.

On the day in question, appellant Lake was traveling along Route 624 in York County and was approaching a point on the highway at which it intersects Gay Street, with Gay Street establishing the right prong of a fork or “Y” in the road. The posted speed limit on Route 624 is 45 m.p.h. and the posted speed limit on Gay Street is 55 m.p.h. While every intersection requires the use of greater than usual caution, at this particular intersection an additional hazard exists ... Gay Street descends sharply as it leaves Route 624, so that an operator turning onto Gay Street from Route 624 cannot immediately see a vehicle on Gay Street which might be traveling toward or away from Route 624 on the far side of the crest. The testimony offered at trial established that appellant Lake turned onto Gay Street, a two lane street, at a speed of between 35 and 55 m.p.h. Just as Lake dropped over the crest of Gay Street he saw the Smith pickup truck approaching him in the wrong lane approximately 38 feet ahead. The head-on collision, by then unavoidable, drove the Smith pickup truck 102 feet down the road and caused the injuries complained of below.

Mr. Smith did not offer an explanation as to why he was driving in the lane reserved for oncoming traffic, but rather maintained that he was on the correct side of the road.² There was considerable evidence refuting this. Appellee Smith joined Lake as a third party defendant in the suits brought by Lake’s passengers and defended the suit brought against him by Lake on the theory that Lake had been contributorily negligent in entering Gay Street at an unsafe speed.

Appellant argues here, as he did below, that the trial court should not have charged on the assured clear distance ahead rule because there was evidence that the vehicles were approaching one another from opposite directions. He contends that the rule should not have been applied to that situation.³ We agree. It was error to charge on the assured clear distance ahead rule without instructing the jury that the rule should not be applied if it found that the vehicles involved were moving toward one another. See Unangst v. Whitehouse, 235 Pa. Superior Ct. 458, 344 A.2d 695 (1975).

The assured clear distance ahead rule is not properly applicable in such a situation. Unangst v. Whitehouse, supra. See Francis v. Henry, 399 Pa. 369, 160 A.2d 455 (1960) ; Fleischman v. Reading, 388 Pa. 183, 130 A.2d 429 (1957) ; Schofield v. Druschel, 359 Pa. 630, 59 A.2d 919 (1948) ; Long v. Pennsylvania Truck Lines, Inc., 335 Pa. 236, 5 A.2d 224 (1939) ; Reifel v. Hershey Estates, 222 Pa. Superior Ct. 212, 295 A.2d 138 (1972) ; Flick v. James Monfredo, Inc., 356 F. Supp. 1143, aff’d, 487 F.2d 1394 (3d Cir. 1973) ; Greene v. Morelli Bros., 463 F.2d 725 (3d Cir. 1972); Snook v. Long, 241 Iowa 665, 42 N.W.2d 76 (1950) ; Cerny v. Domer, 13 Ohio St. 2d 117, 235 N.E.2d 132 (1968). Other rules of the road are applicable to the appellant’s conduct here, but the assured clear distance ahead rule is not.

The assured clear distance ahead rule is a rule of speed. The Vehicle Code provides, inter alia, that “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.” Act of May 1, 1929, P.L. 905, §1002, as amended, 75 P.S. .§1002(a) (1971) (emphasis added).

As a driver approaches the crest of a hill he must control the speed of his vehicle so that he will be able to stop within the distance to whatever may reasonably be on the road ahead on the other side of the crest. Fleischman v. Reading, supra; Schofield v. Druschel, supra; Mihalic v. Texaco, Inc., 377 F.2d 978 (3d Cir. 1967).

If the driver crests the hill and an obstruction straddles his path 100 feet away, it is possible to evaluate the prudence of his speed at the crest by whether or not he was able to stop and avoid a collision. If he could not stop within 100 feet, his assured clear distance at the crest, then his speed was too fast.

If, on the other hand, the object first sighted at the crest is not static but is moving toward the driver, whether or not a collision occurs does not depend primarily on his speed at the crest, but on two factors: speed at the crest and the speed of the oncoming car. The fact of a collision in that situation is an inaccurate indicator of speed at the crest because the collision will necessarily occur short of the point at which the oncoming car was first observed. See Long v. Pennsylvania, Truck Lines, Inc., supra; Greene v. Morelli Bros., supra.

The driver approaching the crest of a steep hill will often reach a point at which there is virtually no assured clear distance ahead. Fleischman v. Reading, supra. It may therefore be argued that any forward movement will violate the rule where vision is thus impaired. Although the preceding would be correct in the face of an obstruction which should be reasonably anticipated, it is not true where the obstruction is created by the negligence or recklessness of another. “ ‘ [A] ssured clear distance ahead’ means only what it says: a clear distance that is assured, that is, one that can be reasonably depended on. . . . Assured does not mean guaranteed.” Fleischman v. Reading, supra at 185-86, 130 A.2d at 431. Appellant here had no duty to anticipate that appellee might be in the wrong lane; he was not required to anticipate the negligence or recklessness of another in calculating his assured clear distance ahead. Fleischman v. Redding, supra; Schofield v. Druschel, supra; Long v. Pennsylvania Truck Lines, Inc., supra; Greene v. Morelli Bros., supra.

The jury should have been charged that if they found that appellant crested the hill and encountered appellee in the wrong lane and coming towards him, they should not apply the assured clear distance ahead rule but should judge appellant’s conduct by the other standards of care upon which they had been instructed.

Appellant’s second allegation of error with regard to the charge of the lower court is that he was entitled to have the jury instructed on reckless conduct, based on the evidence presented concerning appellee Smith’s presence in the left-hand lane of travel when he was unable to see over the crest of Gay Street’s intersection with Route 624. Appellant’s obvious motivation for requesting this instruction was that if Smith’s conduct had been found to be reckless, appellant’s contributory negligence would not have been a bar to his action against Smith. See Williams v. Philadelphia Transp. Co., 219 Pa. Superior Ct. 134, 280 A.2d 612 (1971) ; Merkel v. Scranton, 202 Pa. Superior Ct. 15, 193 A.2d 644 (1963).

The court below determined that the evidence was insufficient, as a matter of law, to support a finding of reckless conduct. With that determination we do not agree. Our courts have often held that driving on the wrong side of the highway is prima facie evidence of negligence, see e.g., Civiakala v. Paal, 427 Pa. 322, 235 A.2d 145 (1967); Nixon v. Chiarilli, 385 Pa. 218, 122 A.2d 710 (1956), although a driver’s action in driving in the wrong lane may be excused by the exigencies of travel in certain situations, see Green v. Johnson, 424 Pa. 296, 227 A.2d 644 (1967). The Vehicle Code, Act of April 29, 1959, P.L. 58, §1004, as amended, 75 P.S. §1004 (Supp. 1975-76) likewise condemns travel on the wrong side of thé road. In this case there is not only evidence of presence on the wrong side of the road, but also evidence of presence on the wrong side of the road in the face of a known hazard. See Fleischman v. Reading, 388 Pa. 183, 130 A.2d 429 (1957). See also Polando v. Blue Ridge Tramp. Co., 374 Pa. 485, 97 A.2d 838 (1953). Such conduct clearly admits of recklessness.

Although not necessary to our decision here in view of our determination that the lower court erred in its application of the assured clear distance ahead rule, we note that the evidence in this case was not inconsistent with a finding by the jury that either operator’s actions in blindly approaching this intersection constituted reckless conduct. This was particularly true with respect to appellee Smith if appellant’s theory that Smith purposefully pulled into the wrong lane to make his turn was believed. The evidence that Smith was on the wrong side of the road, when taken together with the other attendant circumstances, including the fact that he was approaching the blind crest of a hill, provided a sufficient basis for submission of the issue of reckless conduct to the jury.

Judgment reversed and a new trial granted in each of the three consolidated cases.

1 . The Act of May 1, 1929, P.L. 905, §1002, as amended, 75 P.S. §1002(a) (1971) provides:

Ҥ1002. Restrictions as to speed

(a) Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface, and width of the highway, and of any other restrictions or conditions then and there existing; and no person shall drive any vehicle, upon a highway at such a speed as to endanger the life, limb, or property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.” (emphasis added). We have recently discussed the application of this rule to a factual situation similar to that presented here. See Unangst v. Whitehouse, 235 Pa. Superior Ct. 458, 463, 344 A.2d 695, 698 (1975).

2 . Appellant’s theory, manifested in his cross-examination of Mr. Smith, was that Smith was about to make a right turn from Gay Street onto Route 624. Since that course of travel required an extremely sharp turn back to the right, and the Smith truck did not have power steering, appellant claimed that Smith pulled into the left lane to facilitate his making the tight arc required for this turn.

3 . The lower court’s charge contained, inter alia, the following instructions, each of which constitutes an application of the assured clear distance ahead rule:

“... was it negligence on his [appellant’s] part to come around the curve and to enter Gay Street in such a way that he would not be able to stop his vehicle in the event it came upon an obstruction in the highway, particularly in the area where this blind spot occurred?”

“... you have the right to ask yourselves whether or not his speed was such that would enable him to have his vehicle under such control that he could stop to avoid a collision with a vehicle standing in the highway or proceeding toward him which was in this case.” [emphasis added].

“And if you find that he was operating at a speed that was not sufficient to enable him to have the vehicle under control within what has been referred to in the vehicle code as the assured clear distance ahead, then you would certainly be justified to find him guilty of negligence.” [emphasis added].

“Now the parties have submitted a number of requests here that I comment in the charge.... No. 5 I will read. ‘The assured clear distance may be long as on a straight road in bright daylight or it may be shortened by a curve in the road or other conditions. Whatever it may be the duty imposed on the driver is to be able to stop the vehicle safely within that distance.’ ”

Moreover, the opinion of the court below recognizes that a charge on assured clear distance was made and comments on that charge as follows:

“Also, we think the assured clear distance rule applies where vehicles are approaching in opposite directions; that where, as here, the accident occurred as the one operator was coming out of an intersection he was still bound to have his vehicle under such control as to be able to avoid an accident. While it may conceivably be considered error to speak in terms of assured clean- distance in this circumstance, the high degree of care required at an intersection created a situation that would certainly allow the jury to conclude that Terry operated his automobile in a negligent manner, and that he did not have it under proper control.” [emphasis added].