Opinion
May 22, 1944.
June 30, 1944.
Negligence — Automobiles — Through highways — Right of way — Qualification — Intersection — Duty to look before entering — Duty to continue to look.
1. The right of way of an automobile driver on a through highway is qualified. [76]
2. In an automobile collision case in which there was evidence that defendant, proceeding on a through highway, approached the intersection at a speed of seventy miles per hour, and failed to apply her brakes until within seventy-two feet of the intersection, when plaintiff's car had already entered the intersection, it was Held that the evidence was sufficient to sustain a finding of negligence. [74-81]
3. It is the duty of a motor vehicle driver about to cross a through highway to look before entering and to continue to look as he advances, and to keep his car under such control that he can stop at any moment and avoid a collision. [77-8]
Argued May 22, 1944.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON, STEARNE and HUGHES, JJ.
Appeal, No. 186, Jan. T., 1944, from judgment of C. P., Adams Co., Nov. T., 1942, No. 86, in case of B. Rush Mellott, in his own right, and as guardian of Nelson E. Mellott, a minor, v. Katherine Tuckey. Judgment affirmed.
Trespass for personal injuries.
The facts are stated in the opinion by SHEELY, P. J., of the court below, as follows:
The defendant having presented a point for binding instructions, and the jury having disagreed, the defendant filed a motion for judgment on the whole record under the authority of the Act of April 20, 1911, P. L. 70 (12 PS 684). Judgment can be entered for the defendant only if the evidence, viewed in the light most advantageous to the plaintiff, resolving all conflicts therein in his favor, and giving him the benefit of every fact and inference pertaining to the issues involved which may be reasonably deduced therefrom, would not justify a verdict and judgment in his favor: Shapiro v. Philadelphia Electric Company, 342 Pa. 416 (1941); Stabelli v. Somerton Building and Loan Association, 343 Pa. 460 (1942). We will state the facts in this manner.
The accident which gave rise to this action occurred on the morning of August 6, 1942, at the intersection of the Lincoln Highway and the Bonneauville-Granite Road. The Lincoln Highway, on which the defendant was proceeding eastwardly, is thirty feet wide and consists of two concrete strips ten feet wide with a "blacktop" center ten feet wide. The Granite Road, on which the plaintiff was proceeding southwardly, has a bituminous surface and is seventeen feet wide at its intersection with the north side of the Lincoln Highway. The day was bright and clear and the road was dry. There are no buildings in the northwest corner of the intersection and the land is practically level. There is a slight curve in the Lincoln Highway west of the intersection, but from a point ten feet north of that highway there is an unobstructed view of the highway to the west for one thousand feet.
As the plaintiff approached the Lincoln Highway, which is marked as a "through traffic highway", he saw a pick-up truck approaching from the east and brought his car to a complete stop with the front bumper eleven feet, ten inches, north of the Lincoln Highway. After stopping he looked to the west and saw nothing on the highway. He waited until the pick-up truck was about one hundred and fifty feet west of the intersection, put his car in low gear, and looked to the east and to the west. He then had a view of the surface of the highway to the west for a distance of three hundred and sixty-five feet, his view being partly obstructed by the pick-up truck and two trees which were directly in his line of vision. Seeing no vehicle approaching, he entered the intersection without looking again in either direction until his "whole car was just about in the middle lane". At that point, with his car traveling seven miles per hour, he looked to the west and saw the defendant's car approaching at a distance of three hundred and twenty-five feet and at a speed of seventy miles per hour. He accelerated the speed of his car to ten miles per hour and watched the defendant's car approach for a distance of seventy-five feet, when he looked to the south and then again to the west. At that time the defendant's car was swerving to the south and he heard the sound of brakes.
Tire marks on the highway west of the intersection were about seventy-two feet long and led from the southern lane of traffic on the Lincoln Highway to the berm south of the road. At the time of the collision the two front wheels and the right rear wheel of the defendant's car were off the highway; the left rear wheel was either off the highway or near the southern edge. About half of the plaintiff's car was off the highway when it was struck near the right front by the left front corner of the defendant's car. The defendant's speed had been reduced to fifty miles per hour.
The question of the defendant's negligence was clearly for the jury. Her right of way on the through highway was qualified, and if she was operating her car at the speed testified by the plaintiff, and if she failed to apply her brakes until within seventy-two feet of the intersection when the Mellott car had already entered the intersection, there was ample evidence from which the jury could determine her negligence: Maio, Exrx., v. Fahs, 339 Pa. 180, 185.
The question of contributory negligence on the part of the plaintiff is more difficult. As to this the burden of proof was upon the defendant: Grimes v. Yellow Cab Company, 344 Pa. 298, and we cannot declare the plaintiff guilty of contributory negligence as a matter of law unless the evidence of his negligence is clear and unmistakable: Schildnecht v. Follmer Truck Company, 330 Pa. 550.
The plaintiff fulfilled his duty, under Section 1016 of the Motor Vehicle Code, of coming to a full stop before entering the intersection of the Lincoln Highway. He also had the duty, under Section 1014, of yielding the right of way to all vehicles approaching in either direction on such through highway, unless so far in advance that in the exercise of reasonable care and prudence he was justified in believing that he could cross ahead of the approaching vehicle without danger of collision: Steckler v. Luty, 316 Pa. 440. The duty of a driver entering an intersection has recently been restated in Freedman v. Ziccardi, 151 Pa. Super. 159, 30 A. 2, 172 (Jan. 28, 1943): "We have pointed out a number of times that it is the duty of the driver of a vehicle approaching a two way street to look first to his left and then to his right. That is because he first enters the lane in which traffic coming from his left is traveling. If he sees nothing approaching that would be likely to prove a source of danger to him, he may proceed, but as he nears the middle of the street, it is his duty to look to his right again before entering into the traffic lane coming from that direction." The rule has frequently been stated that it is the duty of the driver entering a through highway not only to look before entering, but to continue to look as he advances and to keep his car under such control that he can stop at any moment and avoid a collision: Dougherty v. Merchants Baking Company, 313 Pa. 557; Jaski v. West Park Daily Cleaners and Dyers, Inc., 334 Pa. 12; Riley v. McNaugher, 318 Pa. 217; Lehner v. Schellhase, 341 Pa. 260; Porreca v. North Cleaners and Dyers Inc., 146 Pa. Super. 504.
The plaintiff admittedly did not look to the west, or his right, from the time he started onto the highway until his whole car was about the middle lane of the highway. The middle lane is ten feet wide so that the front of his car was then in, or just at, the southern lane of traffic, and had traversed two thirds of the highway. Under his testimony he could have stopped within a distance of five feet. That would have placed the front of his car in the middle, or south of the middle, of the southern lane of traffic and directly in the path of eastbound traffic. An observation to his right at that point could do him no good as he was then in a position of danger. It has frequently been stated that the purpose of looking is to observe traffic conditions, and it has been held that looking in "a more or less general way does not fulfill this requirement of duty": Stevens v. Allcutt, 320 Pa. 585 (1936). In Lehner v. Schellhase, 341 Pa. 260 (1941), the plaintiff stopped at the curb line where he had a view of two hundred feet to the left, and looked in both directions and saw no cars approaching. He then drove forward without looking again either to the left or right until he had just about cleared the center line of the intersecting street when his car was struck at the rear by the defendant's car approaching from his left. It was held that while the plaintiff complied with the statutory duty of stopping and looking in both directions, his duty did not end there. "He was required to yield the right of way to vehicles approaching from either direction on the through highway. . . . When the plaintiff moved forward and entered the intersection it was also his duty to continue to look as he advanced into the intersection and to keep his car under such control that he could stop at any moment and avoid a collision. . . ." A compulsory nonsuit was sustained.
The plaintiff's failure to look to his right before the front of his car reached the eastbound traffic lane was a direct violation of his duty under the circumstances. There was no other traffic on the highway and nothing to attract his attention. He stated that he did not look to the right again because he thought his first observation was sufficient. That was an unwarranted assumption on his part as subsequent events proved. From the point where he stopped he was required to travel fifty-five feet or more to clear the intersection. That would have required more than five seconds and, in that time, a car proceeding at fifty miles per hour would have traversed more than his clear view to the west. An observation to his right at any time after he was within ten feet of the north side of the highway would have given him a view to the west of one thousand feet and would have enabled him to see the defendant's car approaching, as he testified, at a much higher rate of speed.
This was not the case of a driver arriving at the intersection so far in advance of the other that a reasonably prudent person would think that he could cross in safety. The plaintiff deprived himself of the opportunity to make that determination by failing to look to the right until he had reached a point on the highway where he could stop in safety. So far as his observation was concerned the situation would have been the same if the defendant had then been only fifty feet away.
He further testified that he did not stop when he saw the defendant's car approaching because he thought he had no authority to stop in the center lane of the highway, and he thought he could beat the defendant's car across the intersection. The fact that the defendant's car, after its speed was reduced, reached the intersection before the plaintiff's car had cleared the intersection, even at its increased speed, indicates that the collision would have been apparent to the plaintiff if he had looked in time. The statement of the Superior Court in Clee v. Brinks, Inc., 135 Pa. Super. 345, 355 (1938), is directly applicable: "No matter how negligent defendant's driver may have been, plaintiff would not have been injured if he had used his eyes and exercised ordinary care under the attendant circumstances. If plaintiff had not driven blindly on he would have seen defendant's truck coming at such a speed, compared with his own, that the exercise of reasonable prudence would have required him to stop and let the truck pass in front of him. In our opinion, it was so clear, from the testimony by and on behalf of plaintiff, that his negligence in driving into the intersection, and particularly the northbound traffic lane, without looking to his right after passing the houseline was such a "substantial factor in bringing about his harm" that the trial judge should have declared him guilty of contributory negligence." In that case the defendant's truck was less than one hundred feet away and was proceeding at a speed of thirty-five miles per hour.
The present case is similar, in many respects, to National Chair Co., Inc. v. Barrall, 342 Pa. 389 (1941). In that case the plaintiff's driver testified that he saw the defendant's truck three hundred feet to his right when he was at the curb line. He proceeded into the intersection without looking again until he was about one fourth of the way to the center of the highway. The defendant's truck was then about fifteen feet away proceeding at fifty miles per hour in the middle of the highway. Plaintiff's truck was struck when it was a few feet over the center line. The court said: "Not only did he fail to make a sufficient observation before moving into the intersection, but he should have continued to look after he left the curb and before he reached a point where a collision could not be averted."
Likewise in Goddard v. Armour and Co., 136 Pa. Super. 158 (1939), the plaintiff started to make a left turn into a through street when he saw the defendant's truck approaching about one hundred and fifty or two hundred feet to his left at a speed of twenty to twenty-five miles per hour. The court said: ". . . if he looked with any degree of attention he must have seen it was traveling much faster than the slow rate at which he says he was proceeding and should have realized from what he saw, if he looked, that it would only be a matter of seconds until the truck would be in the intersection. . . ." Two hundred feet at twenty-five miles per hour would be the equivalent to six hundred feet at seventy-five miles per hour.
In Primio v. Haertter, 115 Pa. Super. 564 (1935), the court said: "There is no rigid rule as to how far away the approaching vehicle must be to allow another vehicle approaching the same crossing from the side to continue to advance without its driver being guilty of negligence. Each case must be determined by the circumstances, but taking the slow advance of the plaintiff, his ability to stop in a short distance, the rapid approach of the defendant's truck and the distance to be traveled before the paths of the two trucks would intersect, we cannot escape the conclusion that under the undisputed facts in the case the accident was due to the plaintiff's lack of caution."
Applying these rules, it is clear that had the plaintiff seen the defendant's car from a point where he could have stopped without danger, which he did not, he would have been testing an obvious danger in entering the eastbound traffic lane in the face of the defendant's rapidly approaching vehicle. His negligence in failing to look as he entered the intersection therefore contributed to the happening of the accident.
And now, April 17, 1943, the defendant's motion for judgment on the whole record is granted and it is directed that judgment be entered in favor of the defendant and against the plaintiffs. An exception to this order is noted for the plaintiffs.
Plaintiff appealed.
John P. Butt, for appellant.
Franklin R. Bigham, of Keith, Bigham Markley, for appellee.
The judgment is affirmed on the able and comprehensive opinion of President Judge SHEELY of the court below.