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

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 ...


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