duty imposed by the assured clear distance rule does not vary when the assured clear distance is shortened by darkness, fog, a curve in the road or the crest of a hill.
In Metro v. Long Transportation Company, 387 Pa. 354, 127 A. 2d 716 (1956), the Court unanimously affirmed the granting of defendant's motion for judgment n.o.v. where plaintiff's decedent's tractor-trailer collided with defendant's tractor trailer which was stalled on the highway. The Court observed that "[The] assured clear distance rule has been the law of Pennsylvania for many years. It was established as a common law principle and imbedded in our law by . . . statute. Our courts have called it, 'the only safe rule', . . . 'inflexible', . . . 'fixed and unchangeable', . . . The statute has been applied in many cases as requiring judgment n.o.v. against operators of vehicles who have driven into obstructions on the highway, regardless of the negligence of the person who created the hazard." (emphasis added). See also Rich v. Petersen Truck Lines, Inc., 357 Pa. 318, 53 A. 2d 725 (1947).
Finally, in Hollern v. Verhovsek, 220 Pa. Super. 343, 287 A. 2d 145 (1971), plaintiff's vehicle collided with an overturned tractor-trailer which had been involved in an accident with another vehicle. The second accident occurred at approximately 11:00 P.M. Plaintiff's evidence established that no warning flares or lights had been placed near the capsized tractor-trailer and that the scene of the first accident was obscured by a dark cloud of dust and/or smoke. In affirming the trial court's granting of defendant's motion for compulsory nonsuit, the court held that plaintiff had, as a matter of law, violated the assured clear distance rule and could not recover.
Stano v. Rearick, 441 Pa. 72, 271 A. 2d 251 (1970), cited by Andresen, is inapposite to the facts of this case. Stano holds merely that a motorist does not violate the assured clear distance rule when an object ahead of him in the road is so camouflaged or deceptive in appearance as not to be visible in time for him to stop before striking it. There is no evidence that Williams' tractor-trailer was so camouflaged or deceptive in appearance that it was imperceptible to Andresen. Also inapposite are Nelson v. Damus Bros. Co., Inc., 340 Pa. 49, 16 A. 2d 18 (1940), and Buohl v. Lockport Brewing Co., 349 Pa. 377, 37 A. 2d 524 (1944). These cases involve situations in which a motorist is temporarily blinded by bright lights from another vehicle. See Notarianni v. Ross, 384 Pa. 63, 119 A. 2d 792 (1956).
The facts of the instant case permit no other interpretation but that Andresen failed to keep his car under such control as to comply with the duty imposed by the assured clear distance rule and that this failure was a proximate cause of the accident in which he was involved. Moreover the previously cited cases make it clear that he was not relieved of that duty merely because the assured clear distance ahead of him was shortened by the dip in the road.
We observe that in each of the cases cited above wherein judgment n.o.v. was granted, it was granted in favor of a defendant against a plaintiff whereas in this case it will be granted in favor of an original defendant and third-party plaintiff against a third-party defendant. This distinction does not, however, preclude us from granting judgment n.o.v. "where it is clear from the undisputed facts of record that defendant's negligence was a proximate cause of the accident, it should be so declared despite a jury determination apparently to the contrary." Cowger v. Arnold, 460 F.2d 219 (3rd Cir. 1972); Shakley v. Lee, 368 Pa. 476, 84 A. 2d 322 (1951). Clearly the same rule applies to third-party defendants. Moreover the Pennsylvania rule which precludes a directed verdict for plaintiffs (and presumably third-party plaintiffs) in a negligence (trespass) action based on oral testimony "is not applicable . . . in a diversity action in a federal court where federal law governs questions of when the jury must decide whether the particular elements of liability exist." Cowger, supra.
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