Notarianni v. Ross

119 A.2d 792, 384 Pa. 63, 1956 Pa. LEXIS 527

• Court: Supreme Court of Pennsylvania
• Decided: January 13, 1956
• Docket: Appeal, 308
• Status: Published

Opinions

Opinion bt

Mr. Justice Allen M. Steaene,

Plaintiff appeals from a judgment for defendant non obstante veredicto in a trespass action concerning collision of two motor vehicles. The pivotal question is whether, in the facts of this case, plaintiff’s failure to stop his automobile within the assured clear distance ahead constituted contributory negligence as matter of law. The learned court below ruled that it did.

Anthony Notarianni, the plaintiff, was driving his car northward on Fifth Street, in the City of Philadelphia. He entered a tunnel or underpass on that street, which permits traffic to pass under the approach to the Benjamin Franklin Delaware River Bridge. While in the tunnel plaintiff’s automobile collided with the truck of Jackie Boss, the defendant.

The accident occurred shortly after noon on February 23, 1949, on a bright sunny day; the tunnel or underpass is entered by a descending ramp at the southern approach estimated to be fifty to eighty feet in length; plaintiff entered the tunnel at approximately twenty miles per hour; plaintiff’s' speed at the time of the accident was variously estimated at ten to twenty miles per hour; the mouth of the tunnel, through which plaintiff passed every day, presented an appearance of dárkness; as plaintiff drove through the tunnel he could see only five to ten feet in front of him; after proceeding twenty-five to thirty feet plaintiff saw defendant’s truck ten feet in front of him; he was unable to stop in time to avoid colliding with the rear of defendant’s truck; the reason assigned by plaintiff for not seeing the truck was that his vision was restricted because of the sudden change from bright daylight to darkness.

The Vehicle Code of May 1, 1929, P. L. 905, Art. X, §1002, 75 PS 501 (a) provides, inter alia: “Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed . . . nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead.” This Act has been consistently applied in cases such as the present one, where a motorist collides with the rear of a vehicle which he did not observe in time to avoid. Such motorist is guilty of contributory negligence as matter of law.

It is plaintiff’s contention that his failure to comply with the provisions of The Yehicle Code is excused because of his alleged restriction of vision due to the sudden change from bright daylight to darkness. He relies upon Buohl v. Lockport Brewing Company, 349 Pa. 377, 37 A. 2d 524; Wolfe v. Beardsley, 357 Pa. 1, 53 A. 2d 92. These cases relate solely to situations where temporary blindness results from bright lights of another vehicle. Such principle has no application where the darkness of the tunnel was visible and apparent from fifty to eighty feet as plaintiff approached its entrance; furthermore, he had passed through this tunnel nearly every day and was fully aware of the existing condition.

Neither vehicle had its lights turned on. Plaintiff testified “Who expected [defendant’s truck] to be there?” But plaintiff could not assume that no obstruction would be in the darkened tunnel. In Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369, speaking of the requirement that a driver of an automobile on a dark night must keep his car under such control that he may stop or turn when obstructions appear intercepting his passage, we said (p. 160) : “. . . for it is possible, obstructions may appear at any time in the traveler’s path, as the result of accident or otherwise.”

When an operator of a motor vehicle enters and passes through darkness and fog he is required to maintain such control over his automobile as enables him to stop within the assured clear distance ahead: Burkleca v. Stephens, 370 Pa. 371, 88 A. 2d 57.

A case which involves closely analogous facts to the one now before us is Shoffner v. Schmerin, 316 Pa. 323, 175 A. 516. An automobile was being operated on a public highway and encountered patches of fog which were visible several hundred feet ahead; the motorist entered the fog, observed a truck ahead, but was unable to stop and crashed into the vehicle. Justice Maxey (later Chief Justice), speaking for the Court, said (p. 326) : “. . . the evidence of plaintiffs negligence is so conclusive that it alone — regardless of whether or not there was evidence of defendant’s negligence — requires the entry of judgment n.o.v. in favor of defendant. Cautious movement in fog is required of motorists (as it always has been of navigators). To take ‘a leap in the dark’ is to invite self-injury or self-destruction. . . .” And also (p. 328) : “. . . That he Thought this was a slight amount of fog’ does not excuse him. Fog is fog and its obscurative qualities are known to all individuals who possess even the slight amount of intelligence legally required to qualify one to drive an automobile on the public highways. When plaintiff drove his car into a fog bank which hid a truck from his view, he simply spurned prudence and relied on chance. That chance failed him is his misfortune, not defendant’s fault.” To the same effect see: Rich v. Petersen Truck Lines, Inc., 357 Pa. 318, 53 A. 2d 725, where the motorist drove through a bank of smoke and steam. Also: Simrell v. Eschenbach, supra; Janeway v. Lafferty Brothers, 323 Pa. 324, 185 A. 827; Lauerman v. Strickler, 141 Pa. Superior Ct. 210, 14 A. 2d 608. The judgment for defendant n.o.v. was properly entered.

Judgment affirmed.