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TURNER v. SMITH (ET AL. (10/30/75)

decided: October 30, 1975.

TURNER
v.
SMITH (ET AL., APPELLANT). LAKE, APPELLANT, V. SMITH. LAKE, JR. V. SMITH (ET AL., APPELLANT)



Appeal from judgment of Court of Common Pleas of York County, Jan. T., 1972, No. 110, May T., 1972, No. 648, and Aug. T., 1972, No. 941, in cases of Howard Turner, III v. Charles E. Smith and Terry D. Lake; and Terry D. Lake v. Charles E. Smith; and Scotty Lake, Jr. v. Charles E. Smith and Terry D. Lake, additional defendant.

COUNSEL

Mark Woodbury, III, with him Kain, Brown, Roberts & Woodbury, for appellant.

Robert J. Stewart, with him Daniel W. Shoemaker, and Liverant, Senft and Cohen, and Shoemaker & Thompson, for appellees.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring and Dissenting Opinion by Cercone, J.

Author: Jacobs

[ 237 Pa. Super. Page 163]

This case arose from an automobile collision which occurred on June 11, 1971, when a sedan driven by appellant Terry Lake and a pickup truck driven by appellee

[ 237 Pa. Super. Page 164]

Charles Smith met head-on near the intersection of Route 624 and Gay Street, York County, injuring the occupants of both vehicles. Three trespass actions were thereafter brought and consolidated for trial. The jury denied appellant Lake recovery in his suit against appellee Smith and found against both drivers in the suits filed by appellant's passengers.

Appellant has appealed from all three judgments, claiming that the court erred in its charge. We agree with appellant's assignments of error as to the charge and we reverse and remand for a new trial with respect to the judgments entered against appellant in each of the consolidated cases.

Appellant's specific contentions are that the court below should not have applied the "assured clear distance ahead" rule*fn1 to the facts of this case and that the trial court erred in its refusal to instruct the jury as to the effect of one driver's reckless driving on that driver's defense of contributory negligence. We will discuss both of these issues after a brief summary of the relevant facts.

On the day in question, appellant Lake was traveling along Route 624 in York County and was approaching a

[ 237 Pa. Super. Page 165]

    point on the highway at which it intersects Gay Street, with Gay Street establishing the right prong of a fork or "Y" in the road. The posted speed limit on Route 624 is 45 m.p.h. and the posted speed limit on Gay Street is 55 m.p.h. While every intersection requires the use of greater than usual caution, at this particular intersection an additional hazard exists . . . Gay Street descends sharply as it leaves Route 624, so that an operator turning onto Gay Street from Route 624 cannot immediately see a vehicle on Gay Street which might be traveling toward or away from Route 624 on the far side of the crest. The testimony offered at trial established that appellant Lake turned onto Gay Street, a two lane street, at a speed of between 35 and 55 m.p.h. Just as Lake dropped over the crest of Gay Street he saw the Smith pickup truck approaching him in the wrong lane approximately 38 feet ahead. The head-on collision, by then unavoidable, drove the Smith pickup truck 102 feet down the road and caused the injuries complained of below.

Mr. Smith did not offer an explanation as to why he was driving in the lane reserved for oncoming traffic, but rather maintained that he was on the correct side of the road.*fn2 There was considerable evidence refuting this. Appellee Smith joined Lake as a third party defendant in the suits brought by Lake's passengers and defended the suit brought against him by Lake on the theory that Lake had been contributorily negligent in entering Gay Street at an unsafe speed.

Appellant argues here, as he did below, that the trial court should not have charged on the assured clear distance ahead rule because there was evidence that the

[ 237 Pa. Super. Page 166]

    vehicles were approaching one another from opposite directions. He contends that the rule should not have been applied to that situation.*fn3 We agree. It was error to charge on the assured clear distance ahead rule without instructing the jury that the rule should not be applied if it found that the vehicles involved were moving ...


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