The opinion of the court was delivered by: DITTER
The question in this diversity case is whether failure to operate a motor vehicle on the right side of the highway constitutes negligence per se under Pennsylvania law. Plaintiff was a passenger in an automobile which failed to yield the right of way at a stop intersection and was struck by a car proceeding on the through road. She brought suit against both drivers, but recovered only against the operator of the automobile in which she was riding. At trial plaintiff contended that the other vehicle was not travelling on the right side of the highway. She has taken an appeal to the Court of Appeals on the grounds that my instructions to the jury were erroneous. I am preparing this opinion so that the Court may be advised of my views on the issues involved.
On the evening of October 19, 1968, plaintiff, Anne Hanrahan, a freshman at Rosemont College in suburban Philadelphia, had a blind date with the defendant, Edward McClatchy, a student at Villanova University. With two other couples, they drove to a dance in South Philadelphia in McClatchy's car. They left the dance at approximately 12:30 the following morning in McClatchy's convertible with the top down. Miss Hanrahan was seated in the right front seat of the vehicle, which shortly before the collision was proceeding in a westerly direction on Old Gulph Road, Lower Merion Township, Montgomery County. Although she had her eyes closed, plaintiff was aware, from the way the vehicle slowed down and then accelerated, that Mr. McClatchy went through two stop signs prior to the accident.
At the intersection of Old Gulph Road and Morris Road, Miss Hanrahan again felt the vehicle slow down. She opened her eyes and observed that they were passing a stop sign. She glanced to her left and saw headlights, heard one of the two girls in the back seat scream, and was thrown around inside the automobile. Ultimately the McClatchy vehicle overturned, pinning Miss Hanrahan beneath it and injuring her severely.
The driver of the other vehicle was Edward G. Breskman, also a college student. Although he did not appear at trial, his deposition had been taken. He testified that just prior to the accident he was proceeding north on Morris Road at approximately twenty miles per hour. Without warning, he saw the lights of the McClatchy vehicle coming from his right. The impact occurred immediately thereafter, as a result of which his automobile came to a stop in the intersection while the McClatchy vehicle proceeded for approximately forty feet before it overturned.
Two sections of the Pennsylvania Vehicle Code, 75 P.S. § 101 et seq., were pertinent to plaintiff's claim against McClatchy.
Section 1016 of the Vehicle Code, 75 P.S. § 1016, provides that it shall be unlawful for the driver of any vehicle, before entering a through highway, to fail to come to a complete stop before entering the intersection when an official "stop" sign has been properly erected. Section 1014 of the Vehicle Code, 75 P.S. 1014, requires that the right of way be yielded to all vehicles approaching in either direction on a through highway. The evidence leaves no doubt that McClatchy violated this section of the Code.
Section 1005 of the Code, 75 P.S. § 1005, was pertinent to plaintiff's claim against Breskman. That section provides that in crossing an intersection, a driver shall cause his vehicle to travel on the right half of the highway, unless it is obstructed or impassable.
Plaintiff contends that Breskman violated this section of the Code, and that the jury should have been charged that his doing so constituted negligence per se.
Violation of a statute is not a ground of liability unless it is the proximate and efficient cause of an accident which is of the type the legislative enactment was designed to prevent. Shakley v. Lee, 368 Pa. 476, 478, 84 A. 2d 322, 323 (1951), and cases cited therein. With this precept in mind, I told the jury that negligence was the want of due care under the circumstances, and that since the case was founded upon allegations of negligence, the mere happening of an accident was insufficient to establish liability. I went on to state that an act could not be considered negligent, even if it constituted a violation of a statute, unless the person committing it could have foreseen the likelihood of harm to others. N.T. 21.
I then instructed the jury that it would have to decide whether a collision with another vehicle was an occurrence which Breskman reasonably should have foreseen as a result of his driving on the left hand side of the highway, but which he could have anticipated avoiding had he been driving on the right hand side of the road at the intersection.
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 ...