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Kocher v. Creston Transfer Co.

decided as amended march 3 1948.: March 1, 1948.

KOCHER
v.
CRESTON TRANSFER CO. ET AL.



Author: Kalodner

Before BIGGS, MARIS, and KALODNER, Circuit Judges.

KALODNER, Circuit Judge.

This is an appeal from a judgment entered on a verdict against the appellant in the court below, a motion for new trial having been denied. The proceedings were instituted by appellant as administratrix of the estate of her deceased husband, Fred W. Kocher, and on her own behalf and the behalf of their children under the laws of Pennsylvania. Appellant's decedent lost his life as a result of the accident in controversy, a collision on the Pennsylvania Turnpike approximately five miles from its Carlisle terminus at about 4:50 A.M. on December 17, 1943.

The issues presented on this appeal are whether the jury was properly instructed (1) with respect to the applicability to traffic on the Pennsylvania Turnpike of the "assured clear distance ahead" rule, and (2) with respect to the imputability of negligence to the appellant's decedent.

The record before us disclosed the following:

Two days before the accident, Frank Meglino had been dispatched with a truck-tractor and loaded trailer for Pittsburgh, Pennsylvania. His tractor broke down at Coatesville, Pennsylvania, and Kocher was assigned to take another truck-tractor, pick up Meglino and the loaded trailer, and proceed to Pittsburgh. Kocher drove the tractor to Coatesville where Meglino boarded it and, apparently, the trailer was attached. He then drove the tractor-trailer to a diner at Elizabethtown, Pennsylvania, about eighteen miles east of Harrisburg, Pennsylvania, and forty-two miles east of the scene of the accident. After eating, Meglino took the wheel, Kocher wanting to go to sleep. Kocher fell asleep at about Harrisburg and while he was still sleeping Meglino, proceeding west, collided with the rear of a tractor-trailer owned by the Creston Transfer Co., and driven by one Lalime, both of whom are appellees here.

The Creston vehicle had been towed onto the highway, just prior to the accident, by a truck owned by J. Fishman & Son, Inc., and driven by one Rozier, who are also appellees here. The Fishman and Creston vehicles, in that order headed west, were stopped altogether or partially on the highway at the time of the accident, the drivers being engaged in uncoupling the towing chains. Meglino accounted for the accident thus: He was traveling at a rate of thirty-five to forty miles per hour when he noticed the lights of an object about 100 to 200 feet ahead; he depressed his headlights as a signal of his intention to pass, but at that moment realized that there was an unlighted vehicle - the Creston tractor-trailer - between him and the lighted truck; it was then too late to avert the collision.

The remaining significant evidence insofar as this appeal is concerned, is the testimony of Meglino that both he and Kocher were in charge of the tractor-trailer, which was operated by their employer, Philadelphia Pittsburgh Carriers; that both were authorized to drive; that the trailer was originally assigned to him and the tractor was originally assigned to Kocher; and that both, would, by custom, sign the log at the end of the run.

The court below submitted eight interrogatories to the jury.*fn1 The jury concluded that Rozier, Lalime and Meglino were negligent; that the negligence of each was a substantial factor in bringing about the accident; and that Kocher had a right to share in the control of the vehicle while Meglino was driving.

It may be noted in passing that, since all the operative facts occurred in Pennsylvania, the law of that jurisdiction prevails. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, 114 A.L.R. 1487.

Appellant's first point constitutes an attack upon the instructions to the jury that "* * * no person shall drive any vehicle upon a highway * * * at a greater speed than will permit him to bring the vehicle to a stop within the assured clear distance ahead." It is appellant's position that this rule, commonly spoken of as the "assured clear distance ahead" rule, is without application in the instant case because the accident occurred on the Pennsylvania Turnpike. The Pennsylvania Turnpike, it is argued, is a high speed highway especially designed to eliminate the usual roadway obstructions and is governed by the Regulations of the Turnpike Commission rather than those provisions of the Motor Vehicle Code enacting the "assured clear distance ahead" rule. 75 P.S. ยง 501.*fn2 Needless to say, the Turnpike Commission has not expressly adopted that rule in any of its Regulations.

We think it plain that both subsection (b) and subsection (c) of Section 501 are subject to the proscription in subsection (a) thereof.The exceptive provision in subsection (c) relates to the maximum speed limits "hereinafter provided" for the special classes of vehicles listed and raises the maximum speed limits for those vehicles by twenty miles per hour, preserving, however, the power in the Turnpike Commission "as hereinbefore provided" i.e., in subsection (b)(7), to fix lower maximum speed limits therefor.

The appellant's argument, in any case, must fail for another reason. The "assured clear distance ahead" rule is not merely a statutory obligation, but, apart therefrom, is an established principle of law of negligence in Pennsylvania. Thus, in Hutchinson v. Follmer Trucking Co., 1939, 333 Pa. 424, at page 427, 5 A.2d 182, at page 183, it was said:

"No principle of the law of negligence has been more frequently emphasized in recent decisions than that establishing the duty of the operator of a motor vehicle to maintain such control over it as to enable him to bring it to a stop within the range of its headlights - a mandate ...


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