Reifel v. Hershey Estates
| Decision Date | 15 September 1972 |
| Parties | John J. REIFEL et al. v. HERSHEY ESTATES and Thomas Jay Lasher, Defendants, and Beverley Jeanne Reifel, Additional Defendant. Appeal of John J. REIFEL and Beverley Jeanne Reifel, His Wife. |
| Court | Pennsylvania Superior Court |
Bernerd A. Buzgon, Davis, Katz, Buzgon & Davis, Lebanon, for appellants.
Thomas A. Ehrgood, Lebanon, for Hershey Estates and Thomas Jay Lasher.
R Hart Beaver, Lebanon, for Beverely Jeanne Reifel.
Before WRIGHT, P.J., and WATKINS, JACOBS, HOFFMAN, SPAULDING CERCONE and PACKEL, JJ.
Appellants contend that the trial court erred in instructing the jury on the assured clear distance rule under the evidence presented in the case, and that, therefore, their motion for a new trial should have been granted.
Briefly, the facts are that on December 27, 1968, appellant, Mrs. Reifel, with her two children as passengers, was driving an automobile in a westerly direction on U.S. Rute 322 in Derry Township, Dauphin County. Route 322 is a two-lane highway with a posted speed limit of 55 mph. Appellant was traveling at a speed of about 30 mph on the wet highway, when she noticed a truck, moving slowly from a southerly direction, approach the intersection of Route 322 and University Drive. At the moment she first observed appellee's truck, she was approximately 70 feet from the intersection. Appellee had stopped at a stop sign which was set back 30 feet from the intersection, and began moving toward the intersection at a speed of between two and five miles per hour, so that he could get a clear view of approaching traffic. Appellee testified that he saw nothing, and that he entered the intersection without again coming to a full stop. Appellant, believing that appellee would yield the right-of-way to her vehicle, continued into the intersection without diminishing her speed. Realizing too late that the truck had not stopped, appellant struck the right rear wheels of appellee's truck which was 23 feet long, at approximately the center of the highway, swinging the 11,360 pound truck around and over the medial strip onto the other side of University Drive.
On the basis of the stated facts, the trial judge instructed the jury on the assured clear distance rule:
The assured clear distance rule, originally a common law principle, is part of the Motor Vehicle Code (Act of May 1, 1929, P.L. 905, § 1002) which 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.' Our courts have applied this rule to hold plaintiffs guilty of contributory negligence for having driven into obstacles on the highway, regardless of the negligence of the person who created the hazard. As our Supreme Court said, in Rich v. Petersen Truck Lines, Inc., 357 Pa. 318, 322, 53 A.2d 725, 727 (1947),
A limiting factor to this rule has always been that where a Sudden and clear emergency arises, unforeseeable to a plaintiff and of such severity as to put a driver in instantaneous disability, a court may not charge the jury as to the assured clear distance rule. The emergency, however, must be clear and sudden to such a degree that reasonable men would not differ that the driver was acting under such an emergency. But, where the evidence leaves some doubt as to whether an emergency situation existed, wholly independent and not created by plaintiff's own acts of negligence or recklessness, it is incumbent upon the trial judge to submit the issue to the jury for its determination. Casey v. Siciliano, 310 Pa. 238, 165 A. 1 (1933); Levine v. Mervis, 373 Pa. 99, 95 A.2d 368 (1953). This Court has held that 'if there is any evidence upon the consideration of which reasonable minded individuals might disagree as to whether or not the plaintiff was guilty of negligence which contributed to the accident, then the question of such contributory negligence is for the jury, not the court, to determine . . ..' Toff v. Rohde, 208 Pa.Super. 411, 416--417, 222 A.2d 434, 437 (1966); see also, Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966).
Appellants contend that the assured clear distance rule should not have been charged to the jury because they were placed in a situation of extreme and sudden emergency. Appellants cite a number of cases to support their position. After reviewing the case law on this subject, we are unable to conclude that such an emergency existed in the instant case. Illustratively, appellants cite McElroy v. Rozzi, et al., 194 Pa.Super. 184, 166 A.2d 331 (1960). That case involved a situation where plaintiff was following a jeep upon a highway, and the jeep caused a cloud of dust to rise as it crossed a new construction site. This occurrence suddenly and temporarily removed the visibility of the road ahead, and plaintiff did not see defendant's truck appear on the road ahead. Our Court upheld the verdict for the plaintiff and stated at page 188, 166 A.2d at page 333 of the opinion that, While a sudden cloud of dust from the wheels of a jeep might present an emergency situation, it cannot be said that the instant case presents such a set of circumstances.
In the instant case, appellants admitted seeing appellee's truck 70 feet before reaching the intersection. Appellants concurred in appellee's testimony that appellee was proceeding slowly toward the intersection at the time appellants first noticed appellee's truck. The exact degree of inclemency was in dispute, but it was agreed that the road conditions were wet. Visibility was also in question, but only as affecting appellee's view, since appellants testified that they could plainly see the road ahead. Certainly, the point and force of impact could lead reasonable men to differ as to whether the appellants' car was under proper speed and control to stop within the assured clear distance ahead. [1] We believe that under the evidence on the record there did not exist that unquestioned and clear weight of evidence to constitute a sudden emergency that as a matter of law would have precluded a violation of the assured clear distance rule.
Appellants contend that even if a clear emergency did not exist, the assured clear distance rule should only apply to stationary objects. This argument is founded upon the doctrine of Cormican v. Menke, 306 Pa. 156, 159 A. 36 (1931), and numerous similar cases, [2] which indicate that the assured clear distance rule is applicable only to stationary objects or the equivalent. Those cases held that, where an oncoming pedestrian came in the path of a motor vehicle or where two vehicles were traveling In the same direction, the rule would likewise apply. However, a quick persual of recent case law discloses that the assured clear distance rule has been held to apply qually to intersection accidents. In the case of Enfield v. Stout, 400 Pa. 6, 161 A.2d 22 (1960), our Supreme Court held that if there is any evidence in an intersection accident upon the consideration of which reasonable men might differ, the assured clear distance rule should be determined by the jury.
Therefore, the judgment of the lower court is affirmed.
If an operator of a motor vehicle can only see 200 feet ahead of him, his speed must be such that he can come to a stop within 200 feet. The maintenance of such a relationship between speed and visibility is mandated by the assured clear distance rule. [1] The Supreme Court in Enfield v. Stout, 400 Pa. 6, 11, 161 A.2d 22, 25 (1960) made the following statement which has been subsequently quoted time and again:
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