Before GOODRICH, McLAUGHLIN and KALODNER, Circuit Judges.
Defendant seeks reversal of a judgment, obtained against it, on two grounds (1) that plaintiff was guilty of contributory negligence as a matter of law in that he did not have his car under such control that he could stop it within the range of his headlights;*fn1 and (2) that the road excavation into which the plaintiff's automobile was driven was at that time under the control of an independent contractor and not the defendant, the primary contractor.
Viewed in favor of the plaintiff, as it must be, the evidence concerning the accident is as follows:
About 20 minutes after midnight on the morning of December 13, 1946, plaintiff while operating his automobile at a speed of 30 miles an hour west upon the northernmost of the four traffic lanes of Lancaster Avenue at Strafford, Pennsylvania, drove into an excavation which stretched 20 feet across the two westbound lanes on the north side of the road. The excavation was 6 feet wide and about 5 feet deep. It was at a low point in the road approximately 150 feet west of the "Old Covered Wagon Inn". To the right of the road, on a fence west of the Inn and just east of the excavation, was a sign, 3 feet by 4 feet, which read "Keep to the Right". The sign was illuminated by a pot flare or torch. There were no lights or pot flares burning nor were there any barricades in place on the lane in which the plaintiff was driving cast of the excavation.*fn2 About 50 to 75 feet west of the excavation there were some pot flares burning in that lane. No overhead street lamps lighted the scene of the accident and no watchman was present. Sheppard, the defendant's assistant superintendent, who had, among others, been assigned to the job of seeing to it "that the safety of the public would be protected" by checking on warning lights, etc., had left the scene at 5 P.M. The weather was a little foggy at the site of the excavation and it had been raining shortly before the accident.
After passing the Inn and while nearing the excavation plaintiff saw an automobile on the outside eastbound lane approaching from the opposite direction "blinking" its headlights. The "blinking" was intended to warn the plaintiff of the presence of the excavation. The plaintiff's own headlights were on at the time and illuminated the road for a distance from 100 to 200 feet ahead. Plaintiff could have brought his car to a stop within 15 feet.
At the time of the occurrence Lancaster Avenue was being reconstructed by the Commonwealth of Pennsylvania Highway Department ("Department") which had let a portion of the reconstruction contract to the defendant.The latter in turn, with the permission of Department, had sublet the work to the C. & T. Construction Company. Department's consent was given "with the condition that your (defendant) maintain on the work at all times a competent superintendent in the direct employ of your company, through whom representatives of this Department may deal".
The contract between Department and the defendant required that two lanes of traffic (one in each direction) should at all times be kept open for the use of the traveling public. It specifically provided that suitable and sufficient barricades, warning signs, torches and/or approved reflectors be placed and maintained to protect adequately the work under construction and the traveling public. Barricades, danger and warning signs, and the traffic lanes were required to be illuminated at night in such manner as to be plainly visible and all lights were to be kept burning from sunset until sunrise. A sufficient number of watchmen was to be provided for the protection of the public and the work.
Certain well-established Pennsylvania legal principles are applicable in the determination of the issue as to whether plaintiff was guilty of contributory negligence as a matter of law. They are:
"For a court to be justified in declaring a person contributorily negligent as a matter of law, evidence of such negligence must be so clear and unmistakable that no reasonable basis remains for an inference to the contrary. * * *" Mogren v. Gadonas, 1948, 358 Pa. 507, 510, 58 A.2d 150, 151. The Pennsylvania rule that the operator of an automobile must have such control of it so as to be able to stop it within the range of his headlights, or the assured clear distance ahead, is not an inflexible mandate under the decisions of the State's appellate courts. It is not applied when there is evidence from which the jury may find extraordinary or disconcerting circumstances affecting the driver's judgment and actions at the time of the accident. Yocum v. Reading City, 1912, 235 Pa. 552, 84 A. 510; Farley v. Ventresco, 1932, 307 Pa. 441, 161 A. 534; Kazan v. Wilkes-Barre Railway Corporation, 1942, 151 Pa.Super. 38, 29 A.2d 221, affirmed per curiam by the Pennsylvania Supreme Court, 1943; 347 Pa. 232, 32 A.2d 32; Boor v. Schreiber, 1943, 152 Pa.Super. 458, 33 A.2d 648. It is the duty of the operator of a motor vehicle "* * * to regard the traffic around him as well as the roadway ahead of him. * * *" Boliver v. Philadelphia, 1939, 137 Pa.Super. 437, 442, 9 A.2d 193, 195.One, "* * * should not be held negligent in doing an act which he believed was proper and that he had been encouraged to believe proper by the one who injured him." Klingensmith v. West Penn Railways Co., 1931, 303 Pa. 487, 491, 154 A. 811, 812; nor is there a duty to anticipate defendant's negligence. Dickun v. Pittsburgh Railways Co., 1932, 308 Pa. 20, 161 A. 739. "On a motion for judgment n.o.v., the testimony should not only be read in the light most advantageous to plaintiff, all conflicts therein being resolved in his favor, but he must be given the benefit of every fact and inference of fact pertaining to the issues involved which may reasonably be deduced from the evidence." Galliano v. East Penn Electric Co., 1931, 303 Pa. 498, 508, 154 A. 805, 809.
Applying the principles stated to the instant case, we are of the opinion that the question of contributory negligence was clearly one for the exercise of reasonable judgment by the trial court and jury and we cannot say as a matter of law that they erred in the conclusion which they reached. Farley v. Ventresco, supra.
The presence of the "Keep to the Right" sign just east of the excavation on which the plaintiff said he relied was alone sufficient to make the question of contributory negligence one for the jury. Additionally, there were the factors of the burning pot flares in the lane west of the excavation and the temporary distraction of the plaintiff from the roadway immediately ahead of him by reason of the blinking lights of the approaching automobile.
In Havens v. Strayer, 1937, 326 Pa. 563, 193 A. 13, 16, the defendant, a contractor, was replacing a bridge. The center of the bridge was found to have moved 30 inches. The defendant nevertheless wished to keep the bridge open to traffic, pursuant to his contract obligation. Defendant's watchman at one end of the bridge was instructed to tell motorists that the bridge was safe for the use of one car at a time and to inform them that the bridge "had moved at the center pier, and that they were traveling at their own risk if they crossed the bridge." The Pennsylvania Supreme Court held that plaintiff's decedent was not guilty of contributory negligence as a matter of law. Said the Court 326 Pa. at page 570, 193 A. at page 16:
"It cannot be said as a matter of law that a man is negligent who starts to cross a bridge after being told in effect by the watchman stationed there ...