Fleischman v. City of Reading

• Decision Date: 25 March 1957
• Citation: 388 Pa. 183,130 A.2d 429
• Parties: George M. FLEISCHMAN v. CITY OF READING, a Municipal Corporation, Appellant.
• Court: Pennsylvania Supreme Court

130 A.2d 429

388 Pa. 183

George M. FLEISCHMAN v. CITY OF READING, a Municipal Corporation, Appellant.

Supreme Court of Pennsylvania

March 25, 1957

Argued January 9, 1957

Appeal, No. 90, Jan. T., 1957, from judgment of Court of Common Pleas of Berks County, Sept. T., 1953, No. 128, in case of George M. Fleischman v. City of Reading. Judgment affirmed.

Trespass for personal injuries. Before HESS, J.

Verdict for plaintiff in the sum of $20,000; defendant's motions for judgment n.o.v. and for new trial refused and judgment entered on the verdict. Defendant appealed.

Judgment affirmed.

Ralph C. Body, with him John C. Clemmens, C. Wilson Austin, City Solicitor, and Body, Muth, Rhoda &amp Stoudt, for appellant.

Charles H. Weidner, with him Stevens & Lee, for appellee.

Before JONES, C.J., BELL, CHIDSEY, MUSMANNO, ARNOLD, JONES and COHEN, JJ.

OPINION

MR. JUSTICE MUSMANNO

The negligence of the driver of the defendant's truck in this case was pronounced, flagrant, and practically uncontradicted. Halted on the wrong side of the road, he pulled out into a lane of traffic not his own, and collided with a car being driven by the plaintiff, George M. Fleischman, inflicting injuries which the jury evaluated at $20,000. The defendant municipality has appealed to this Court seeking judgment n.o.v., on the contention that the plaintiff was guilty of contributory negligence. It also asks, in the alternative, for a new trial, advancing reasons which will be discussed later.

I.

Reconstructing the accident with the testimony which best fits into the plaintiff's account as to how the mishap occurred (as we are required to do in an appellate review of the case), the following narrative emerges. On May 10, 1952, at about 2 o'clock in the morning, as he was returning from an American Legion activity, the plaintiff, while driving along Lancaster Avenue in the City of Reading, observed, behind some cars parked on his right side of the road, what he described to be "a little light on the ground at the cars." Since the light was not in his path of travel he continued on his way until, when about 35 feet away from the point which later turned out to be the place of collision, the slanting broadside of a truck loomed before him. He tried to avoid the obstacle by swinging further to his right but the interval of time and space within which to accomplish the hurried maneuver was too short, and the inevitable crash followed.

In support of its argument for judgment n.o.v. the defendant urges application of the rule announced in The Motor Vehicle Code and many of our decisions that the operator of a motor vehicle must have it under such control that he can stop within the "assured clear distance ahead." The defendant interprets "assured clear distance ahead" to mean more than what is within the purport of its language. "Assured clear distance ahead" means only what it says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome all fortuitous hazards which suddenly face him. Assured does not mean guaranteed. When a driver approaches the crest of a hill, there comes a moment when, because of the convexity of the highway, he has practically no guaranteed clear distance ahead, but he can reasonably be assured that no one will be insane enough to approach the crest of the road from the other side of the summit, using the contrary lane of travel. If such a predicament should develop and a collision result, the motorist on his own side of the thorough-fare cannot be declared guilty of contributory negligence as a matter of law on the theory that he did not have an assured clear distance ahead. Assured clear distance ahead does not embrace a state of affairs where a truck lurks behind parked cars and then suddenly moves into the highway. Assured clear distance does not include a situation where a vehicle is ambushed in the shadows of other parked cars and then, without warning, charges into the street.

In the case at bar, Fleischman did have an assured clear distance ahead of him even when he saw the light on the defendant's truck 100 feet away. It was only when the truck moved into the plaintiff's path of travel, that the assured clear distance became un-assured. By this time, however, fate's course had been shaped beyond man's alteration.

In the case of Schofield v. Druschel, 359 Pa. 630, the accident occurred when the defendant's unilluminated car travelling on the wrong side of the road collided with another car on its own side of the road. In the ensuing lawsuit it was argued by the defendant that the driver of the decedent's car was guilty of contributory negligence as a matter of law. We said: "This Court has repeatedly held that a driver at night is not bound to anticipate all possibilities. It is the duty of the driver of a vehicle to have his car under control at all times. Having one's car under control means that in any situation reasonably likely to arise he will be able to stop his car before doing injury to any person or property ... One is not bound to anticipate negligence of another. More particularly, Schofield was not bound to anticipate that Druschel would violate the Motor Vehicle Code by driving on his wrong side of the road and without lights. It cannot be said as a matter of law that this was a situation 'reasonably likely to arise under the circumstances.'"

In the case of Long v. Pa. Truck Lines, Inc., 335 Pa. 236, the plaintiff was injured when his car collided with the defendant's which was travelling in a direction opposite to that allowed by law. The lower Court reversed a verdict returned in favor of the plaintiff, asserting that since the evidence showed that the accident happened 50 feet from a curve, the plaintiff had ample time within which to stop his car had he been operating it carefully. The Trial Court said further that: "It was his [the plaintiff's] duty to so drive his car that when he turned the curve he could stop it within that distance necessary to avoid a collision with what might suddenly loom up in front of him in the road after he had come around the curve." This Court rejected the lower Court's reasoning and judgment, saying: "Appellant was not under a duty to anticipate that the driver of a vehicle coming in the opposite direction around the curve would occupy the center of the highway in violation of the law of the road."

The plaintiff in this case had no way of foreseeing the zigzagging of the defendant's truck which was collecting garbage on either side of the street, and thus tacking like a sailing vessel moving in the face of headwinds.

In the case of Wilson v. Con. Dressed Beef Co., 295 Pa. 168, the plaintiff was injured when her car came into contact with the defendant's truck which was taking a diagonal course. there also, the defendant charged the plaintiff with contributory negligence. This Court said: "The question of contributory negligence was also for the jury ... The truck, going at twenty miles an hour, was not in her view over three seconds before the accident, and for only a fraction of that time did the truck appear to be turning against her. Whether in that brief time Mrs. Wilson could have changed her course to the right and escaped the collision is problematical, and was for the jury. 'Negligence cannot be imputed because of the failure to perform a duty so suddenly and unexpectedly arising that there is no opportunity to apprehend the situation and to act according to the exigency." We affirm the lower Court's refusal to enter judgment n.o.v.

II.

On May 13, 1952, that is, three days after the plaintiff had undergone a serious operation, and while his arm with a wire plunged through bones in his hand, was suspended in mid-air traction, an unintroduced man entered his darkened room in the hospital, raised the window shade, and proceeded to ask questions, to which the plaintiff, considering his pain and shock, replied to the best of his ability. When three sheets of paper had been filled with interrogations and answers, a pen was thrust into the plaintiff's uninjured hand and he scrawled his signature. At the trial, defendant's counsel cross-examined the plaintiff at length on the answers he had made in the hospital. At no time did defendant's counsel indicate to the Court and jury the identity of the person who was responsible for the statement. Upon redirect examination, plaintiff's counsel asked the plaintiff if he knew who it was who had put the questions to him at the hospital. The plaintiff replied that the visitor was a total stranger to him, and then the following colloquy occurred: "Q. Did you know later who he was? A. Yes, he left his card on the dresser, and a visitor a day or two later told me a certain man was in to see me because he must have left a card, and I didn't know anything about it. Q. Who was the man that took it? A. An insurance man. Q. And what did his card say? A. I don't remember."

Defendant's counsel moved for the withdrawal of a juror on the ground that insurance had been mentioned, to the prejudice of his client. The motion was refused and the defendant urges here that the lower Court's refusal to declare a mistrial constituted error which calls for a new trial.

It is quite obvious from the record that there was no attempt on the part of plaintiff's counsel, or on the part of the plaintiff himself, to disclose that any verdict recovered against the defendant would be paid by an insurance company. It is also obvious that the question put by plaintiff's counsel was one which the situation practically...