Opinion
May 28, 1947.
June 30, 1947.
Negligence — Automobiles — Assured clear distance ahead — Smoke and steam — Visibility.
In a trespass case, in which it appeared that plaintiff while operating a tractor-trailer on a highway was enveloped in a bank of smoke and steam from a nearby railroad yard; that, although he was unable to see anything ahead of him, he continued ahead at slow speed, and collided with defendant's tractor-trailer, which was in plaintiff's lane of traffic; and that before entering the bank of smoke and steam plaintiff had looked and had observed nothing ahead of him on the road to a point beyond where the accident ultimately happened; it was Held as a matter of law that plaintiff was contributorily negligent.
Argued May 28, 1947.
Before MAXEY, C. J., DREW, LINN, STERN, PATTERSON and STEARNE, JJ.
Appeal, No. 108, Jan. T., 1947, from judgment of C. P., Cumberland Co., Feb. T., 1945, No. 66, in case of Paul A. Rich v. Petersen Truck Lines, Inc. Judgment affirmed; reargument refused August 4, 1947.
Trespass for personal injuries.
The facts are stated in the opinion, by REESE, P. J., of the court below, as follows:
This action in trespass was brought by the plaintiff to recover damages for injuries sustained as a result of a collision of a tractor-trailer driven by him with a tractor-trailer owned by the defendant company. The jury returned a verdict for the plaintiff, and the defendant's motions for judgment n. o. v. and for a new trial are now before us.
On the motion for judgment n. o. v., the testimony should not only be read in the light most advantageous to the plaintiff, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence: Welch v. Sultez, 388 Pa. 583, 590; and on such a motion the plaintiff is entitled to have the evidence supporting his verdict considered, and all the rest rejected: Ashworth v. Hannum, 347 Pa. 393, 395. So viewing the evidence, it reveals the following facts:
On January 19, 1943, at about 4:30 a. m. the plaintiff, forty-six years of age, was driving a Mack tractor, with a Fruehauf trailer attached, northwardly on U.S. Highway No. 11, enroute from New Cumberland to Williamsport. Rain was falling and the highway was wet. About one-half mile north of the village of Enola, the highway is three lanes in width, the center lane being macadam and the outer two lanes being concrete. The accident occurred approximately at the low point between two hills of slight grade. The plaintiff, driving north, had descended a grade and the defendant's equipment, proceeding south, had descended the other grade. The highway at this point is immediately west of and slightly higher than the Enola railroad yards of the Pennsylvania Railroad which lie between the highway and the Susquehanna River.
As the plaintiff neared the scene of the accident, descending the grade aforesaid, he was enveloped in a cloud or bank of smoke and steam from the railroad yards. He braked his equipment, slowed down to a speed of approximately five miles per hour and, using the guard rail posts on his right as a guide, proceeded forward. He drove approximately six or eight truck lengths through the cloud of smoke and steam, after which it cleared away, and while in the cloud of smoke and steam was unable to see anything ahead of him. Inasmuch as his equipment was approximately 35 feet in length, the distance traveled through the cloud of smoke and steam was from 210 to 280 feet.
After emerging from the smoke and steam, he drove four to six truck lengths, or from 140 to 210 feet, entirely free of any smoke or steam. During this interval, he testified that he could see the road ahead to a point beyond where the accident ultimately happened and nothing was ahead of him on his lane of traffic. He was then enveloped in a second cloud of smoke and steam and again slowed down to five miles per hour and again used the guard rails at his right as a guide and proceeded forward for a distance, which he said was "six outfit lengths", or a distance of 210 feet. At five miles per hour, it would take him approximately 29 seconds to travel 210 feet and during that time, he testified repeatedly that he was unable to see anything whatever ahead of him. After thus traveling for 210 feet, he saw immediately to his left, in the center lane of the highway, what "looked like the rear of a trailer" directly opposite his driver's seat. Upon seeing this object, he applied his brake and turned to his right, moving forward about five or six feet, when he collided with the tractor attached to the trailer on his left. The tractor and trailer with which he collided was in a jack-knifed position, the trailer and tractor forming a "V", with the tractor occupying about three-quarters of the plaintiff's lane of traffic. After the impact the plaintiff's equipment moved forward five or six feet and came to a stop. The impact threw open the left door of the plaintiff's tractor and threw him out, but his right foot was caught and he couldn't free himself. Immediately thereafter both pieces of equipment caught fire and the plaintiff was very badly burned and permanently injured. The plaintiff was entirely familiar with the highway at this point, in both daylight and in dark, and in all kinds of weather, and he had encountered similar clouds of smoke and steam from the railroad yards several times previously.
During his testimony the plaintiff said several times that while he was traveling through the cloud of smoke and steam immediately preceding the accident, for a distance of 210 feet, he was unable to see anything ahead of him and that he did not see the object which he struck at all before the collision, except that he did see the trailer directly to his left.
Section 1002 of the Vehicle Code of May 1, 1929, P. L. 905, and its amendments, 75 PS 501, 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." The assured clear distance rule has been the law of Pennsylvania for many years. It was established as a common law principle and imbedded in our law by the above statute. Our courts have called it, "the only safe rule": Simrell v. Eschenbach, 303 Pa. 156, 160; "inflexible": Gaber v. Weinberg, 324 Pa. 385, 387; "fixed and unchangeable": Stark v. Fullerton Trucking Co., 318 Pa. 541, 544; the statute has been applied in many cases as requiring judgment n. o. v. against operators of vehicles who have driven into obstructions on the highway, regardless of the negligence of the person who created the hazard. The rule has been applied to hold plaintiffs guilty of contributory negligence for having driven into obstacles on the highway when their range of vision was shortened by fog: Lauerman v. Strickler, 141 Pa. Super. 240; Cormican v. Menke, 306 Pa. 156; Shoffner v. Schmerin, 316 Pa. 323; "by rain and fog": Mason v. Lavine, Inc., 302 Pa. 472; "by fog, mist and ice": Janeway v. Lafferty Bros., 323 Pa. 324; "by snow": Hutchinson v. Follmer Trucking Co., 333 Pa. 424; "by a curve in the road": Gaber v. Weinberg, 324 Pa. 385; Simrell v. Eschenbach, 303 Pa. 156. In all of these cases it was held it is unavailing for the plaintiff to say that he had no reason to expect the obstruction in the highway.
In the present case it appears by the plaintiff's own testimony that he drove "six outfit lengths", or 210 feet in a bank of smoke and steam at five miles an hour, or for approximately 29 seconds in time, was unable to see anything whatever ahead of him, and did not see the defendant's equipment until he had driven past part of it and never saw the part of the defendant's equipment with which he collided. In our opinion, this was clearly such a situation as the appellate courts had in mind when they said, "fog may be so dense on the highway that to proceed at any rate of speed is imprudent": Shoffner v. Schmerin, 316 Pa. 323, 326; Lauerman v. Strickler, 141 Pa. Super. 240, 243.
The assured clear distance rule requires that a driver keep his vehicle under such control that he can always stop within the distance that he can clearly see. What this distance will be will vary according to the visibility at the time and other attending circumstances. In the case before us, the plaintiff could see nothing ahead and, therefore had no assured clear distance ahead; hence, to proceed for a distance of 210 feet and for an elapsed time of 29 seconds without being able to see anything ahead, strikes us as being contributory negligence as a matter of law. What was said in Lauerman v. Strickler, p. 245, is pertinent: "While unable to see what was in front of him on the highway, . . . he nevertheless continued in a manner to invite disaster if anything beyond his vision confronted him on the highway. . . . And it is unavailing to say that he had no reason to expect defendant's automobile to be stopped on the highway obscured by the fog, and into which he crashed."
In most of the Pennsylvania cases the plaintiff's vision has been obscured by fog or other atmospheric conditions. We have found no case exactly like the one before us, where the plaintiff's vision was obscured by smoke and steam. However, we feel that the principles enunciated by the "fog" cases are clearly applicable to the situation before us. Our courts have frequently said that the assured clear distance rule applies however much a driver's visibility may be impaired by storm, darkness, fog, curve in the road, or other conditions: Weibel v. Ferguson, 342 Pa. 113, 118; Hutchinson v. Follmer Trucking Co., 333 Pa. 424, 427. In Reid v. Southern Railway Co., 183 S.E. (Ga.) 849, 850, the plaintiff drove into smoke emitted by a locomotive. The court said: "He took the chance of there being some hidden obstruction or danger within the smoke and he therefore proceeded at his peril." In Robinson v. Short, 79 P.2d (Kans.) 903, the plaintiff drove for some distance through dust and could not see over three feet ahead of the car. The court held the plaintiff contributorily negligent as a matter of law. In Palmer v. Marceille, 175 A. (Vt.) 31, 34, the plaintiff drove through smoke so thick she could see nothing. The court said that a motorist "should not proceed at all when the obscurity is such that he can see nothing at all." In Robinson v. Mutnick, 131 A. (N.J.) 67, 68, the court said that when a driver's vision is entirely obscured by a temporary obstruction, such as a dust cloud or smoke, it is his duty to remain at a standstill until the temporary obstruction has come to an end.
The plaintiff herein lays considerable stress on the fact that he testified that in the interval between the two clouds of smoke and steam he looked ahead on the highway to a point beyond where the accident ultimately happened and could see nothing. Recalling that he traveled from 140 to 210 feet between the two clouds of smoke and steam and then traveled 210 feet in the second cloud of smoke and steam, his testimony means that he looked at the road ahead and saw nothing and then traveled from 210 feet to 420 feet without again looking. To us it seems immaterial whether a plaintiff says that he looked once and didn't look thereafter or whether he says, as here, that he looked once and couldn't look thereafter. In Cunningham v. Spangler, 123 Pa. Super. 151, a defendant testified that he looked for other traffic when 150 feet from the scene of the accident and did not look thereafter. The Superior Court held that it was proper to charge the jury that he was negligent as a matter of law. In McCartney v. Pennsylvania Railroad, 307 Pa. 226 and in Hower v. Pennsylvania Railroad, 308 Pa. 246, it was held that obstruction of view by smoke does not excuse a failure to look.
Plaintiff further contends that although the court be of the opinion that he was guilty of contributory negligence, such contributory negligence is not a defense in this case, because the driver of the defendant's equipment was guilty of reckless or wanton misconduct. In support of this contention the plaintiff cites Kasanovich v. George, 348 Pa. 199. In that case, and also in Misorski v. Pennsylvania Railroad, 348 Pa. 204, the Supreme Court held that contributory negligence is not a defense to an action for an injury caused by reckless or wanton misconduct of the defendant; but it was also pointed out that "wanton misconduct is something different from negligence however gross, — different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertance, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong." At another point in the case cited, the Supreme Court pointed out that there would be wanton misconduct only where a defendant exhibits a reckless disregard for the plaintiff's safety after observing his perilous position. It is immediately apparent that the defendant in the case before us was not guilty of reckless or wanton misconduct. In fact, the evidence of any negligence at all is meager and, further, there is no evidence whatever that the defendant realized or observed peril or danger to the plaintiff and then exhibited a reckless disregard for the latter's safety.
And now, December 28th, 1946, the motion for a new trial is overruled; the motion for judgment n. o. v. is granted, and judgment is hereby entered in favor of the defendant and against the plaintiff.
Plaintiff appealed.
James H. Booser, with him Robert L. Myers, Jr., McNees, Wallace Nurick and Myers Myers, for appellant.
Mark E. Garber, for appellee.
In this action of trespass for damages for personal injuries, plaintiff appealed from the action of the learned court below in entering judgment n. o. v. for defendant. In an able and comprehensive opinion by President Judge REESE, in which all pertinent facts and authorities are reviewed, the contributory negligence of plaintiff is clearly established. Our examination of the record has convinced us there is no escape from that conclusion.
Judgment of the learned court below is affirmed on the opinion of Judge REESE.