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JUAN GARCIA AND NEREIDA GARCIA v. JAMES E. BANG (07/14/88)

SUPERIOR COURT OF PENNSYLVANIA


filed: July 14, 1988.

JUAN GARCIA AND NEREIDA GARCIA, APPELLANTS,
v.
JAMES E. BANG, APPELLEE

Appeal from Order of the Court of Common Pleas, Civil Division, of Lancaster County, No. 1965-1984.

COUNSEL

James H. Thomas, Lancaster, for appellants.

Melinda Fisher, Lancaster, for appellee.

Rowley, Wieand and Montemuro, JJ.

Author: Wieand

[ 375 Pa. Super. Page 357]

On the evening of January 27, 1984, James Bang was operating his automobile southwardly on Route 72 in Lancaster County. When he came upon a slow-moving vehicle

[ 375 Pa. Super. Page 358]

    traveling in the same direction, he ignored the double yellow line on the highway, swung into the lane for approaching traffic, and started to pass. He did not complete the pass. He struck head-on a pick-up truck being operated in the opposite direction by Nereida Garcia. Garcia was seriously injured, and she and her husband commenced an action against Bang to recover damages. Bang filed a counterclaim to recover for the damages caused to his vehicle. The jury which heard the evidence refused to find Bang negligent, found Garcia solely responsible for the accident, and awarded damages to Bang for the full amount of his counterclaim. We reverse and remand for a new trial.

The accident happened about 7:20 p.m. Bang was driving toward Lancaster to pick up a friend and was scheduled on a flight leaving the Baltimore-Washington International Airport at 10:15 p.m. He was aware of the double yellow lines but, nevertheless, decided to cross into the other lane in order to pass the slow-moving vehicle to "save time" and "stay on schedule." He said that he had not seen the approaching truck until the moment of impact. Garcia had left the parking lot at a dairy store and was returning home at the time of the accident. The testimony was in dispute regarding whether the headlights of the truck had been turned on. As she started into a curve in the two-lane highway, she collided with the Bang vehicle which was coming out of the curve on the wrong side of the double yellow line.

The rule in Pennsylvania is that violation of a statute is negligence per se. "The violation of a legislative enactment by doing a prohibited act . . . makes the actor liable for an invasion of an interest of another." Jinks v. Currie, 324 Pa. 532, 538, 188 A. 356, 358 (1936) quoting Restatement, Torts § 286. See also: Kaplan v. Kaplan, 404 Pa. 147, 149, 171 A.2d 166, 167 (1961); Ennis v. Atkin, 354 Pa. 165, 169, 47 A.2d 217, 219 (1946); Salvitti v. Throppe, 343 Pa. 642, 644, 23 A.2d 445, 446 (1942).

Section 3307 of the Vehicle Code provides as follows:

[ 375 Pa. Super. Page 359]

    highway in order to "save time" and "remain on schedule." Signs are intended to alert motorists that they are approaching a no-passing zone. The absence of a sign at the beginning of the no-passing zone does not excuse a motorist who, being aware of double yellow lines on the road surface, elects nevertheless to cross over into the opposing traffic lane and pass a slow-moving vehicle in order to save time.

This Court's decision in Cervone v. Reading, 371 Pa. Super. 279, 538 A.2d 16 (1988), is not to the contrary. In that case the appellant had been found negligent for operating his motorcycle across a double yellow line. He argued on appeal that the trial court had erred in permitting a jury to find negligence for crossing the double yellow lines because of the absence of signs along the highway. Appellant had admitted at trial that double yellow lines on the road indicated "no passing" to him, but he had denied that he was attempting to pass. This Court held that the trial court had not erred when it allowed the jury to consider crossing the double yellow lines as evidence of negligence. Having made this determination, the Superior Court did not consider whether the absence of signs on the highway was sufficient to prevent a finding that defendant had been negligent per se for crossing the double yellow lines. The trial court's instructions to that effect, even if more favorable to appellant than he was entitled to receive, were not a subject for review. Therefore, the Superior Court was not required to consider and did not decide whether crossing double yellow lines into an opposing lane of traffic, where signs had not been posted, was negligence per se.

The jury's finding in the instant case that Bang was free of negligence cannot stand. It does not follow, however, that Garcia is entitled to judgment n.o.v. There is also evidence that the Garcia truck was being operated at night without lights. This evidence, if believed, would support a finding that Garcia was also negligent in causing the accident. See: 75 Pa.C.S. § 4302. Under these circumstances, the apportionment of causal negligence between Bang and Garcia was for the jury to determine pursuant to

[ 375 Pa. Super. Page 361]

    the Comparative Negligence Law.*fn2 Although appellants are not entitled to judgment n.o.v., they are entitled to a new trial, for the jury's verdict was clearly contrary to the weight of the evidence.*fn3

Appellants also complain that the trial court erred in its evidentiary rulings and jury instructions concerning Mrs. Garcia's psychological injuries. It is obvious, however, that the jury did not reach the issue of damages and that these alleged errors, therefore, did not contribute to the verdict. Moreover, since the case must go back for a new trial, any review of appellants' damage claims would be advisory in nature. Therefore, we decline in this appeal to review the damage issues raised by appellants.

Reversed and remanded for a new trial. Jurisdiction is not retained.

Disposition

Reversed and remanded for a new trial. Jurisdiction is not retained.


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