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January 30, 1962

Louis W. SILVERII, Administrator of the Estate of Dominick J. Mash, Deceased,
Wilson KRAMER and John W. Price

The opinion of the court was delivered by: WOOD

This is a rear-end collision case in which plaintiff's decedent drove his tractor-trailer squarely into the rear of defendant's coal truck. The accident occurred at approximately 2:30 a.m. on December 3, 1956, on Route 22 in Whitehall Township, about one mile north of Allentown, Pennsylvania. The plaintiff presented evidence which established the following.

Defendant Price, operator of the coal truck, had a flat tire and stopped to fix it at a point on Route 22 where the Fullerton Road exit forms a 'V' with the highway. Price parked on the berm or 'V' and changed the tire. Before he got into the cab of the truck, he looked back up the highway and did not see any lights coming. It was shown that the view from that point was at least 730 feet up to the crest of a slight grade in the road. Price then got into the cab, shifted into second gear, looked in the rear-view mirror and saw no lights coming, then proceeded forward. The coal truck had entered the highway, straightened away in the right hand lane, and was proceeding about 25 to 30 miles per hour when it was struck by decedent's tractor-trailer. The distance traveled by the coal truck before the impact was 105 feet; the impact hurled the loaded coal truck forward another 190 feet. Plaintiff's decedent was killed immediately.

 At the conclusion of plaintiff's presentation of evidence establishing the above facts, defendants moved to dismiss the action. *fn1" Defendants argued that plaintiff had failed to produce evidence sufficient for a jury to find defendant Price negligent, and that plaintiff's evidence had conclusively shown that plaintiff's decedent was contributorily negligent. The trial judge's evaluation of the plaintiff's evidence was then, and continues to be, that plaintiff could not recover. At the time of the argument on the motion to dismiss, the following colloquy occurred between the trial judge and plaintiff's counsel:

 Mr. Wickenhaver: 'If Your Honor please, the evidence is of course largely circumstantial.'

 The Court: 'I agree with that * * * But it is circumstantially against you.' (NT P. 84)

 The Court: 'You know just as well as I do that a Pennsylvania driver is required to be able to stop within a clear distance ahead. There was nothing to obstruct his (decedent's) view.' (NT P. 86)

 Mr. Wickenhaver: 'The proximate cause of the accident is the sudden entrance of the coal truck onto the highway at a time too late for the decedent to avoid it.'

 The Court: 'It can't be sudden when he got on the highway and traveled 105 feet and was straightened away and was moving along at 25 or 30 miles an hour in his own lane of traffic. You can't call that sudden * * *.' (NT PP. 90, 91).

 The Court: '* * * I still don't understand how you get around the assured clear distance ahead theory when your own evidence shows there was absolutely nothing to obstruct this man's view for 700 feet before this accident happened * * *.' (NT P. 99).

 We quote this portion of the record here because it expresses succinctly the principal contention of plaintiff, our answer to that contention, and our belief that the operation of the assured clear distance rule controlled this case. The jury, however, was permitted to consider the case *fn2" and it returned a verdict for the plaintiff. The defendants then duly filed the motions presently before us.

 Having considered the briefs and arguments of both counsel, we have concluded that the defendants' motion for a directed verdict should have been granted on the ground that the plaintiff's evidence proved conclusively that the decedent was contributorily negligent.

 We are brought to this conclusion by a comparison of the case at bar with the case of Makowsky v. Povlick, 262 F.2d 13, (3rd Cir. 1959). The facts proved in that case by the plaintiff were as follows. Plaintiff's decedent ran into the rear of defendant's tractor-trailer, killing the decedent. The accident occurred at night on a four lane highway just at, or slightly over, the crest of a hill. Both vehicles were proceeding north in the eastern-most right hand lane. After the accident, the rear of defendant's trailer was located between 10 to 15 feet north of the point where a private circular driveway met the highway. *fn3" Both the tractor and the trailer were mostly in the eastern-most lane, the tractor pointing slightly downhill. None of the rear lights on the trailer were operating. At the conclusion of the plaintiff's evidence, the trial judge granted the defendant's motion to dismiss. On appeal, the Court of Appeals for the Third Circuit affirmed, and held that although the defendant was negligent in failing to have the trailer equipped with the rear lights required by law, the evidence also proved conclusively that the plaintiff's decedent was contributorily negligent in failing to have his vehicle under such control that he could stop within the assured clear distance ahead.

 In the case at bar, as in the Makowsky case, supra, plaintiff's counsel attempted to avoid the application of the assured clear distance rule to the decedent by arguing that the defendants' truck pulled out suddenly onto the highway. The court of appeals in the Makowsky case rejected this argument, stating that since the rear of the trailer was located at least 10 feet from the driveway, the truck must have been on the highway for an appreciable length of time before the accident, and therefore, it must have been visible to the plaintiff's decedent. That rationale applies with even more force in the case at bar. Here the coal truck was struck 105 feet from the point on the berm where it had been parked. Its rear lights were on and visible 730 feet to the rear. It is undisputed that the coal truck had proceeded to a point where it was entirely on the highway and straightened away when it was struck by decedent's truck; not in its side, but squarely in the rear of defendant's truck. All of these facts negate plaintiff's argument that the defendant's truck came 'suddenly' out onto the highway into the path of the decedent.

 Plaintiff has cited several cases which hold that the assured clear distance rule does not apply when a driver rams into the back of a vehicle which had abruptly pulled out in front of such driver. But these cases obviously have no application in the case at bar where the ...

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