Appeal from the Judgment of the Court of Common Pleas, Civil Action, Law, of Berks County at No. 68 January Term, 1973 and No. 264 August Term, 1975. No. 6 November Term, 1971. Nos. 76 and 85 OCTOBER TERM, 1976.
Richard A. Bausher, Reading, with him Stevens & Lee, for appellant at No. 76.
Arnold M. Kessler, Philadelphia, for appellant at No. 85.
David M. Kozloff, Wyomissing, with him Eves & Kozloff, Wyomissing, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Cercone, J., dissents.
[ 244 Pa. Super. Page 350]
The litigation resulting in this appeal came about following an intersectional accident between a tractor-trailer
[ 244 Pa. Super. Page 351]
and a Volkswagen. The estate of Michael J. Bascelli, who was a passenger in the Volkswagen, instituted a trespass action in the court below against Jean Bucci, the driver of the Volkswagen, and Maier's Bakery Corporation [hereinafter referred to as "Maier"], the owner of the tractor-trailer and the employer of its driver. The driver of the tractor-trailer, Richard D. Gerhart, similarly brought an action in trespass against Jean Bucci. The cases were consolidated for trial before a jury. At the conclusion of the proceedings, the jury returned a verdict in favor of the Bascelli estate against Bucci alone for $25,000.00 (no verdict for the estate was returned against Maier) and in favor of Gerhart against Bucci again in the sum of $25,000.00. The Bascelli estate has appealed claiming that the verdict which found Maier free of negligence was against the weight of the evidence, that the lower court erred in its charge to the jury, and that the verdict of $25,000.00 was inadequate. In her appeal, Jean Bucci has argued that the lower court should have found Gerhart, the driver of the tractor-trailer, guilty of contributory negligence as a matter of law, that the verdict was against the weight of the evidence, and that the lower court erred in its charge to the jury.
The first and most difficult issue we will consider is the alleged negligence of the driver of the tractor-trailer, Richard Gerhart. In dealing with this issue we must carefully review the relevant facts leading up to the accident. An excellent description of them appears in the opinion of the court below:
"The evidence revealed that the accident in question occurred on December 24, 1970 at approximately 1 a. m. at the intersection of Routes 82 and 422 East in Exeter Township, Berks County. A collision took place between a Volkswagen automobile and a tractor-trailer. Plaintiff's decedent was a passenger in the Volkswagen operated by Bucci. Gerhart was the driver of the tractor-trailer and was then an employee of
[ 244 Pa. Super. Page 352]
Maier's acting within the scope of his employment. Route 422 eastbound is a one-way two laned highway approximately twenty-two (22) feet wide. Route 82 is a two-way highway north and south and is also approximately twenty-two (22) feet wide. The highways form an intersection where the paved portions of the roads overlap. The intersection is controlled by overhanging traffic signals which are located over Route 422 at the eastern portion of the intersection controlling eastbound traffic, and over Route 82 at the northern portion of the intersection controlling northbound traffic and southbound traffic. Signals controlling the eastbound lanes of Route 422 were flashing yellow and signals controlling the northbound and southbound lanes of Route 82 were flashing red. The roads were wet and it was raining. Visibility was good. The headlights of the tractor and trailer clearance lights were lit. Immediately prior to the accident, Bucci was traveling south on Route 82 and Gerhart was traveling east in the right hand lane of Route 422. At a distance of approximately three blocks from the intersection Gerhart observed cross traffic. He released his foot from the accelerator slowing his speed from approximately 40 m. p. h. and proceeded at approximately 35 to 38 m. p. h. The posted speed limit on Route 422 was 45 m. p. h. As Gerhart proceeded toward the intersection his view of Route 82 to the north was partially obstructed by a two and one-half story brick home set back on the northwest corner of the intersection. When he approached the intersection he observed that no automobiles or headlights from southbound vehicles were coming from the north on Route 82. As he drove past the Homestead Inn located at the southwest corner of the intersection he looked to his right. When his tractor was in the middle of the southbound lane of Route 82 he saw headlights coming toward him from his left at a distance of approximately twelve feet. He swerved right but was struck by
[ 244 Pa. Super. Page 353]
Bucci's automobile on the driver's door of his tractor. After impact the tractor came to rest in a jackknifed position at Delp's Esso service station located at the southeast corner of the intersection. The Volkswagen came to rest in a parking lot to the east side of Liss Motors located on the northeast corner of the intersection. The tractor was damaged at the driver's door and left front fender. The Volkswagen was damaged on its passenger side and front portion."
The law is clear that a driver who does not look for traffic on the intersecting street before and while proceeding through an intersection controlled by a flashing yellow light in his favor is guilty of negligence as a matter of law. Musi v. De Sarro, 370 F.2d 113 (3d Cir.1966); Allega v. Eastern Motor Express Co., Inc., 378 Pa. 1, 105 A.2d 360 (1954); see Hayter v. Sileo, 230 Pa. Super. 329, 326 A.2d 462 (1974). This rule of the road has sometimes been described as one "which certainly requires looking to the right and left before entering upon the intersecting street." Allega v. Eastern Motor Express Co., Inc., supra at 4, 105 A.2d at 362 (emphasis original). At trial, the following exchange took place between Gerhart, the driver of the tractor-trailer, and counsel for the Bascelli estate:
"Q. Now, when you looked to your left, the left look that you just spoke about and saw headlights, where was the front bumper of your truck at that time?
"A. I would say either at the intersection or through ...