Appeal, No. 293, Jan. T., 1952, from order of Court of Common Pleas No. 7 of Philadelphia County, Dec. T., 1950, No. 2252, in case of Mary M. Griffith, Admrx., Estate of Elmer F. Griffith, deceased, v. Ervin Weiner. Order affirmed.
Bernard J. Smolens, with him William P. O'Neill, for appellant.
Thomas Raeburn White, Jr., with him White, Williams & Scott, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE BELL
The narrow question involved is whether the decedent was guilty of contributory negligence as a matter of law, when on a clear night he drove his automobile into the rear of a large tractor trailer which was parked at the right edge of a main highway 44 feet in width.
The collision occurred on the Lincoln Highway on January 9, 1950, at about 9:00 P.M. The trailer which
was 5 feet wide and over 10 feet high had been stopped for about 5 or 10 minutes under a dim are light on the south side of Lincoln Highway. Lincoln Highway is a four-lane highway, which is perfectly straight for a distance of at least 100 feet, from the direction in which decedent was approaching, to the scene of the accident. There was no eye witness of the accident; and no evidence whether the lights on the truck were lit at the time of the accident, although one witness did not see any lights burning on the back of the trailer. The night was clear and there was no obstacle to obstruct the decedent's vision before he hit the truck; and no automobiles which might have blinded decedent were approaching from the opposite direction.
"The assured clear distance ahead" rule has become well established in Pennsylvania: Rich v. Peterson Truck Lines, 357 Pa. 318, 53 A.2d 725; Stark v. Fullerton Trucking Co., 318 Pa. 541, 179 A. 84. While there is a presumption that a deceased driver exercised due care, it is a rebuttable presumption of fact, and the facts in this case unquestionably overcome the presumption. Even if the decedent had been driving 50 miles an hour he undoubtedly could have stopped his automobile in sufficient time to avoid running into the trailer if he had been paying proper attention to the road, or he could have pulled a few feet to his left and easily avoided the collision on the straight four-lane highway.
In Rich v. Peterson Truck Lines, 357 Pa., supra, the Court said: "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 ...