The opinion of the court was delivered by: SHERIDAN
These are motions for judgment n.o.v. or for a new trial by Hess Oil & Chemical Company, Inc. (Hess) in separate negligence actions for personal injuries brought against it by Joseph Stanchis and George Schwartz. Judgment was entered in favor of Stanchis
and against Hess on a jury verdict of $57,877.66, and in favor of Schwartz, third party defendant, and against Hess, third party plaintiff; judgment was entered in favor of Schwartz
and against Hess on a jury verdict of $2,000.
The buildings and premises of Hess are located on North Keyser Avenue, a two lane highway in Scranton, Pennsylvania, and an artery for traffic in and from the City. At approximately 5:00 A.M. on February 23, 1963, while darkness prevailed, an employee of Hess, unable to start one of its tractor-trailers, had it pushed up an incline on the Hess property onto North Keyser Avenue and then permitted it to coast downhill in a southerly direction. It failed to start and came to rest at the bottom of a hill, blocking the entire southbound lane of North Keyser Avenue. Shortly thereafter, a motor vehicle, operated by Schwartz with Stanchis as a passenger, was proceeding in southerly direction on North Keyser Avenue, with headlights on low beam and at a moderate rate of speed within the prevailing speed limit. Schwartz did not become aware of the disabled vehicle until he was approximately 100 feet North of it. Although he applied his brakes and swerved to the left, he was unable to avoid a collision and the right front of his vehicle came in contact with the rear of the trailer. There was evidence that the tractor-trailer was without lights, that there was no flashing of lights, and that red electric lanterns or portable emergency reflectors were not placed on the highway to warn other vehicles even though the tractor-trailer remained stalled on the highway while arrangements were being made to obtain another tractor to push it in a further attempt to get it started.
The actions against Hess charged negligence in failing to have its vehicle properly lighted and in failing to give warning of a disabled vehicle in violation of certain provisions of the Pennsylvania Motor Vehicle Code.
In the Stanchis action Hess joined Schwartz as a third party defendant alleging the accident was caused by the negligence of Schwartz. In the Schwartz action Hess raised the contributory negligence of Schwartz as a defense. Defendant paid the Stanchis verdict, but contends that Schwartz' own testimony convicts him of a violation of Section 1002(a) of the Motor Vehicle Code, which renders him negligent and liable for contribution, and also prevents recovery in his own action.
Section 1002(a) of the Pennsylvania Motor Vehicle Code, 75 P.S. § 1002(a), provides:
"Any person driving a vehicle on a highway shall drive the same at a careful and prudent speed, not greater than nor less than is reasonable and proper, having due regard to the traffic surface, and width of the highway, and of any other restrictions or conditions then and there existing; and no person shall drive any vehicle, upon a highway at such a speed as to endanger the life, limb, or property of any person, nor at a speed greater than will permit him to bring the vehicle to a stop within the assured clear distance ahead."
In defining "assured clear distance" the Pennsylvania Supreme Court has said that this section requires that the driver operate his automobile at such a rate of speed and in such a manner that he can always stop it within the distance that he can clearly see. "By this is meant the range of the driver's vision which, of course, in darkness is the scope of his headlights." Enfield v. Stout, 1960, 400 Pa. 6, 11, 161 A.2d 22, 25. Hess relies on the testimony of Schwartz that he first saw the trailer when he was able to pick it up about 100-110 feet distant, the range of his low beam headlights, and that his view was not obstructed. There was testimony by a photographer that in daylight there is a view of the scene of the accident from the top of the knoll 1,000 feet to the North and by a Scranton police officer that a driver proceeding South would have a view of about 700 feet as he approached the point of impact. The evidence was sufficient to submit the question of Schwartz' negligence and contributory negligence to the jury, but it was not sufficient for the court to declare Schwartz negligent and contributorily negligent as a matter of law.
In order for Hess to obtain contribution from Schwartz, it must appear not only that Hess and Schwartz were concurrently negligent, but that the negligence of each was a proximate cause of the accident. Potere v. City of Philadelphia, 1955, 380 Pa. 581, 112 A.2d 100; Coyne v. Pittsburgh Rys. Co., 1958, 393 Pa. 326, 141 A.2d 830; Fehrs v. McKeesport, 1935, 318 Pa. 279, 178 A. 380. In Coyne v. Pittsburgh Rys. Co., supra, the court said:
"* * * Proximate cause is peculiarly a jury question. It is usually defined as 'That which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' * * *
"Equally as relevant is this Court's pronouncement in the case of Burrell Tp. v. Uncapher, 117 Pa. 353, 363, 11 A. 619, 621, where we said: '"If the defendant's negligence concurred with some other event (other than the plaintiff's fault) to produce the plaintiff's injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, the defendant is responsible, even though his negligent act was not the nearest cause in the order of time."'"
In addition, the jury might have concluded that Schwartz found himself in an emergency not of his own making. In Noll v. Marian, 1943, 347 Pa. 213, 32 A.2d 18, the court said:
"The rule applicable here is that negligence may not be implied where one, because of the shortness of time in which to form judgment in an emergency not created by his negligence, fails to act in the most judicious manner. We said in Polonofsky v. Dobrosky, 313 Pa. 73, 76, 169 A. 93: 'This was all so sudden and unusual a situation that this defendant comes within the rule laid down in the case of Wilson v. Consolidated Beef Co., 295 Pa. 168, 145 A. 81, and kindred cases, to the effect that negligence may not be implied because of failure to perform a duty so suddenly and unexpectedly arising that there was no opportunity to apprehend the situation and to act according to the exigency. When one finds himself in a position of danger which is not the result of his negligence he is not responsible if he makes a mistake in judgment in getting out. An honest exercise of judgment is all that is required of him even if he could have done better had he had time to deliberate.'"
Finally, the assured clear distance rule does not require the impossible of a nighttime driver. In Fleischman v. City of Reading, 1957, 388 Pa. 183, 130 A.2d 429, the court said:
"* * * 'Assured clear distance ahead' means only what is says: a clear distance that is assured, that is, one that can reasonably be depended on. The rule does not mean that the motorist must carry in his mind every possible series of combinations which could conspire against him, and that he must transport ready-made solutions to overcome ...