I declined to charge the jury that Breskman had a positive duty to drive in the right lane because I do not believe section 1005 was designed to protect drivers or passengers of cars which run through "stop" signs. If it were, its violation would, of course, make Breskman negligent as a matter of law.
In Ennis v. Atkin, 354 Pa. 165, 169, 47 A. 2d 217 (1946), the Supreme Court of Pennsylvania, adopting Section 286, Restatement of Torts, set forth the requisite nexus between the statutory violation and the injury complained of. The violation of a legislative enactment by doing a proscribed act makes the actor liable for an invasion of the interest of another if: (a) the intent of the enactment is exclusively or in part to protect an interest of the other party as an individual; and (b) the interest invaded is one which the enactment is intended to protect; and (c) where the enactment is intended to protect an interest from a particular hazard, the invasion of the interest results from that hazard; and (d) the violation is a legal cause of the invasion, and the other party has not so conducted himself as to be disabled from maintaining an action.
In Ennis, defendant's truck was parked within fifteen feet of a fire hydrant in violation of section 1020 of the Pennsylvania Vehicle Code of 1929. While so parked the truck was struck by the overhang of a hook and ladder fire-engine proceeding to a fire at another location, as a result of which a fireman aboard the fire-engine was thrown off and killed. The court held that the legislative prohibition against parking within fifteen feet of a fire hydrant was intended to assure immediate availability of water in the event of fire rather than to prohibit parking as an aid to highway safety, and that violation of section 1020 was therefore not negligence per se with respect to the hazard of another vehicle colliding with the parked vehicle. Accord : Klimczak v. 7-Up Bottling Co. of Philadelphia, 385 Pa. 287, 293, 122 A. 2d 707 (1956). Similarly, in Salvitti v. Throppe, 343 Pa. 642, 23 A. 2d 445 (1942), plaintiff was injured when forced off the road by defendant's truck which swerved to its left as plaintiff was attempting to overtake and pass. Defendant contended plaintiff was guilty of contributory negligence since he did not have an unobstructed view for 500 feet as required by the Vehicle Code for automobiles which are attempting to pass. The court held, however, that the accident was not a hazard contemplated by the no-passing statute and plaintiff's failure to obey it was, therefore, an irrelevant factor which would not preclude recovery.
The very language of section 1005 excuses a motorist's failure to keep to the right where the right half of the highway is "obstructed or impassable." More significantly, although comparatively few cases have arisen under 75 P.S. § 1005, numerous decisions have construed 75 P.S. § 1004, the section which requires motorists generally to keep to the right side of the highway. Far from viewing a violation of the "keep to the right" rule as negligence per se, these decisions merely have held that operation of a motor vehicle on the wrong side of the highway is prima facie evidence of negligence sufficient to carry the case to the jury. Matkevich v. Robertson, 403 Pa. 200, 169 A. 2d 91 (1961); O'Neil v. O'Neil, 204 Pa. Super. 485, 205 A. 2d 687 (1964); Williams v. Goldstein, 10 Chest. 564 (Pa. Com. Pl. 1962). And questions of whether section 1004 has been violated, Houlihan v. Hazlett, 435 Pa. 284, 254 A. 2d 615 (1969), and on whose side of the road the respective vehicles were on at the time of a collision, Pastorkovich v. Mascetta, 53 West. 85 (Pa. Com. Pl. 1971), are always for the jury ; see also Bonacci v. Horner, 205 Pa. Super. 58, 205 A. 2d 617 (1964).
Thus, while the testimony of Miss Hanrahan and the investigating officer was sufficient, and indeed a prerequisite, to carry the case against defendant Breskman to the jury, as a matter of law the responsibility of sifting and weighing the evidence, assessing credibility, and ultimately determining the fact of negligence and the liability arising therefrom, lay within the exclusive province of the jury.
I charged the jury that if they found that Breskman did not keep to the right hand side of the road, this was a fact, together with all the other surrounding circumstances, to be weighed in determining whether or not he was negligent.
A number of sledding accident cases involving "keep to the right" statutes are instructive on this question. For example, in Huber v. Anderson, 355 Pa. 247, 49 A. 2d 628 (1946), plaintiff's sled came rapidly out of a street in a "T" intersection and collided with defendant's automobile, which was travelling on the left hand side of the intersecting street. The trial court set aside a $5,000 jury verdict for the plaintiff and entered judgment non obstante veredicto for the defendant. In affirming, the Pennsylvania Supreme Court stated:
'We may speculate that had the automobile been going faster or slower, the sled might have missed it, but the accident was not the normal result of the speed of the vehicle.' . . . And similarly immaterial, in this case, is the fact that at the time of the accident defendant was operating his automobile on the left-hand side of the street . . . ' The fact that the driver was on the left side of the road, it may be observed, does not in itself establish negligence, unless his position on that side was the efficient cause of the collision [citing cases]' [emphasis added].
See also Morris v. Kauffman, 120 Pa. Super. 515, 182 A. 758 (1936); Siglin v. Haiges, 95 Pa. Super. 588 (1929). And in Krywucki v. Trommer, 199 Pa. Super. 145, 184 A. 2d 389 (1962), where both defendants' vehicles, one parked and the other travelling, were in the wrong traffic lanes at the time the driver of the moving automobile struck the minor plaintiff, a jury verdict for that defendant was held nonetheless proper.
Lastly, plaintiff contends that proximate cause was not really an issue in this case and that the jury should not therefore have been instructed on that subject. Plaintiff plainly is mistaken. Proximate cause is always an issue in this type of case. In a line of Pennsylvania cases reaching back over at least one hundred years, there has been no deviation from the rule requiring that the act complained of be the proximate cause of the injury sought to be compensated. See Whitner v. Von Hintz, 437 Pa. 448, 263 A. 2d 889 (1970); McGrew v. Stone, 53 Pa. 436 (1867). As was stated by Circuit Judge, then District Judge, Van Dusen in Almond v. Pollon, 198 F. Supp. 301, 303 (E.D. Pa. 1961), aff'd, 300 F.2d 763 (3d Cir. 1962), "whether . . . negligence consists of violation of a statute or not, a defendant is not liable unless this negligence is a proximate cause of the accident." My charge to the jury I think correctly tied the element of the evidence of Breskman's failure to keep to the right to the equally necessary element of proximate cause.
In summary, I believe that since the accident was not a hazard contemplated by the statute, violation of the statute was not negligence per se. The jury was told that defendant's failure to keep his car to the right was a factor to be considered in deciding whether he was negligent. This was a proper instruction under all the circumstances, and plaintiff is not entitled to a new trial.