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NOTARIANNI v. ROSS (01/13/56)

January 13, 1956

NOTARIANNI, APPELLANT
v.
ROSS



Appeal, No. 308, Jan. T., 1955, from judgment of Court of Common Pleas No. 3 of Philadelphia County, March T., 1949, No. 5939, in case of Anthony Notarianni v. Jackie Ross, trading as Trenton Fast Freight. Judgment affirmed.

COUNSEL

Albert C. Gekoski, with him Charles S. Shotz, for appellant.

Bernard J. Smolens, with him John J. McDevitt, 3rd, for appellee.

Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.

Author: Stearne

[ 384 Pa. Page 63]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

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

[ 384 Pa. Page 64]

    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 Ross, 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 darkness; 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, ยง 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

[ 384 Pa. Page 65]

    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 Vehicle 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 ...


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