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LATHROP v. HENKELS & MCCOY

December 8, 1972

Franklin A. LATHROP
v.
HENKELS & McCOY, INC.


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 This matter is before us on defendant's Motion for Judgment Notwithstanding the Verdict or, in the alternative, for a new trial. The plaintiff in this diversity action was injured when the automobile he was driving struck a barricade and a pile of pipe on West Chester Pike. The defendant was laying the pipe for the Philadelphia Electric Company in the medial strip of the highway.

 According to plaintiff's testimony, he was proceeding west at approximately 35 miles per hour on West Chester Pike in the right hand lane *fn1" when he passed a sign warning him that construction was in progress. He observed barricades protruding onto the left lane, to prevent traffic from proceeding in that lane and from traveling too closely to a ditch being dug in the medial strip of the highway. Plaintiff also observed piles of pipe on the right shoulder of the road.

 When plaintiff reached the "T" intersection with Tuxedo Road, he testified that he saw no barricades in the left lane. From the intersection with Tuxedo Road, West Chester Pike becomes an upgrade and crests approximately 150 feet from the intersection. As he proceeded up the hill in the right hand lane, plaintiff testified that he saw no evidence of construction on either side of the road nor were there any signs warning him of construction beyond the crest of the hill. Plaintiff said that the upgrade restricted his view of the road ahead to the crest of the highway. Believing that he had passed the construction area, plaintiff accelerated to 40 or 45 miles per hour.

 When plaintiff reached the crest of the hill, he was momentarily blinded by the sun. Upon pulling down the sun visor to block out the light, plaintiff observed a barricade located in the lane in which he was driving, the right hand lane. Due to his momentary blindness, plaintiff did not see the barricade until it was only 35 to 40 feet away. Plaintiff estimated that the barricade was 50 to 60 feet west of the crest of the hill. Plaintiff also noticed a pile of pipe on the right which protruded approximately ten to twelve inches onto the right hand lane. To the left plaintiff saw a ditch being constructed in the medial strip. Plaintiff testified that he was traveling too fast to halt his vehicle within the short distance to the barricade. He was afraid to steer to the left of the barricade because he thought that the car might spin out.

 Confronted with a classical Hobson's choice, plaintiff did not brake his automobile, but elected to drive between the barricade and the pipe. Unfortunately, he hit the barricade, spun to the right and came to rest on top of the pile of pipe.

 The defendant made timely motions at trial for a directed verdict which we denied. The jury found for the plaintiff in the amount of $60,000 plus medical expenses. The defendant now argues that he should be granted Judgment Notwithstanding the Verdict because plaintiff's evidence shows that Lathrop was contributorily negligent as a matter of law. He also argues that he is entitled to a new trial because the charge to the jury on the assured clear distance rule was erroneous, the charge concerning plaintiff's right to recover for loss of earning capacity was erroneous, the plaintiff failed to prove loss of earning capacity by competent evidence, the verdict was excessive, and the defendant was prejudiced by the court's ruling on certain matters of evidence. We will deny the motions.

 The testimony, when viewed in a light most favorable to the verdict winner, shows that the plaintiff was not contributorily negligent as a matter of law. Plaintiff's testimony showed that he increased his speed on the upgrade to approximately 40 miles per hour after he had passed what he thought was the end of the construction zone. It was not unreasonable for him to believe this because, as he testified, there was no evidence of further construction on either side of the road nor were there any signs warning him of a lane change west of the hill crest.

 Defendant maintains, however, that because the crest blocked plaintiff's vision of what lay on the other side of the hill, he should have reduced his speed accordingly. Failure to do so constituted a violation of the assured clear distance rule. Hogg v. Bessemer & Lake Erie R. Co., 373 Pa. 632, 96 A.2d 879 (1954). Defendant further maintains that plaintiff's momentary blindness, caused by the sun, is of no consequence. Due to the speed at which he was driving, the accident would have occurred anyway.

 We do not agree with defendant's contentions. Defendant cannot expect to escape liability by hiding behind the protective barrier of the assured clear distance rule. Not only does public policy militate against the interjection of such a defense in this particular case, but the facts constitute a judicially recognized exception to application of the rule.

 Defendant created a condition upon the roadway which was a trap for all but the most extraordinarily prudent motorist. All along the construction zone east of Tuxedo Road only the left hand lane was blocked to westbound traffic. Only the right hand lane remained open to traffic throughout the construction area. At the "T" intersection with Tuxedo Road all construction ceased and both lanes became open to westbound traffic. It is arguable whether or not the reasonably vigilant motorist would have concluded that no further construction would be encountered. It is certain, however, that even the most cautious motorist could not have avoided falling into the trap set by defendant. Without warning, the only lane that had previously been open to traffic was closed. A barricade was placed at a location where no reasonably prudent motorist would expect it. Lathrop was not required by any rule of law to anticipate that defendant would block the right hand lane.

 Defendant may not set a trap upon the highway and then excuse his conduct because a reasonably vigilant driver fails to exercise an unusual degree of care to avoid falling into it. The assured clear distance rule ...


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