Appeal from judgment of Court of Common Pleas of Lebanon County, March T., 1970, No. 714, in case of John J. Reifel, Beverley Jeanne Reifel, his wife, Charles M. Reifel and Beverley Suzanne Reifel, a minor, by her guardian John J. Reifel and United States of America v. Hershey Estates and Thomas Jay Lasher and Beverley Jeanne Reifel.
Bernerd A. Buzgon, with him Davis, Katz, Buzgon & Davis, for appellants.
Thomas A. Ehrgood, with him Ehrgood and Ehrgood, for appellees.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Hoffman, J. Dissenting Opinion by Packel, J. Jacobs, J., joins in this dissent.
[ 222 Pa. Super. Page 214]
Appellants contend that the trial court erred in instructing the jury on the assured clear distance rule under the evidence presented in the case, and that, therefore, their motion for a new trial should have been granted.
Briefly, the facts are that on December 27, 1968, appellant, Mrs. Reifel, with her two children as passengers, was driving an automobile in a westerly direction on U.S. Route 322 in Derry Township, Dauphin County. Route 322 is a two-lane highway with a posted speed limit of 55 mph. Appellant was traveling at a speed of about 30 mph on the wet highway, when she noticed a truck, moving slowly from a southerly direction, approach the intersection of Route 322 and University Drive. At the moment she first observed appellee's truck, she was approximately 70 feet from the intersection. Appellee had stopped at a stop sign which was set back 30 feet from the intersection, and began moving toward the intersection at a speed of between two and five miles per hour, so that he could get a clear view of approaching traffic. Appellee testified that he saw nothing, and that he entered the intersection without again coming to a full stop. Appellant, believing that appellee would yield the right-of-way to her vehicle, continued into the intersection without diminishing her speed. Realizing too late that the truck had not stopped, appellant struck the right rear wheels of appellee's truck which was 23 feet long, at approximately the center of the highway, swinging the 11,360 pound truck around and over the medial strip onto the other side of University Drive.
On the basis of the stated facts, the trial judge instructed the jury on the assured clear distance rule:
"No person may operate an automobile on a highway at a speed so as to endanger any person's life or property. And you are not permitted to drive at a
[ 222 Pa. Super. Page 215]
speed greater than will permit you to stop within the assured clear distance ahead. . . .
"You will have to determine whether or not from the evidence the conduct of the other was reasonably foreseeable. When you get into the assured clear distance ahead rule, as far as [appellant] is concerned, she has or any woman I should say, can only take advantage of the assured clear distance ahead rule when the conditions are usually normal. Now, you have the case of sudden emergencies where you can see ahead, but because of a sudden emergency you can't stop within what your visibility is because of some action on another person's part. . . . Now, if there was a sudden emergency there, it doesn't make a hoot of difference what this mother did at that particular time."
The assured clear distance rule, originally a common law principle, is part of The Vehicle Code (Act of May 1, 1929, P. L. 905, § 1002) which 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 distance ahead." Our courts have applied this rule to hold plaintiffs guilty of contributory negligence for having driven into obstacles on the highway, regardless of the negligence of the person who created the hazard. As our Supreme Court said, in Rich v. Petersen Truck Lines, Inc., 357 Pa. 318, 322, 53 A.2d 725 (1947), "The assured clear distance rule requires that a driver keep his vehicle under such ...