Cannon v. Tabor

*248 HOFFMAN, Judge,

concurring:

I applaud the majority’s scholarly efforts to clarify the application of the “assured clear distance ahead rule” and to delineate its interrelationship with the “sudden emergency doctrine.” I also agree with the majority that the assured clear distance rale is inapplicable to the instant case and, therefore, I agree with the majority’s grant of a new trial to appellant. However, I write separately to indicate my disagreement with the majority’s characterization of the rale as it applies to intersections and laterally moving vehicles generally.

In footnote four, the majority correctly points out that there has been a tendency, sometimes erroneously, to give a jury instruction concerning assured clear distance ahead simply because a jury instruction is requested regarding sudden emergency. The general rale, as stated by the majority, is that the two doctrines are mutually exclusive. However, in its discussion of Reifel, I believe the majority errs in its suggestion that the assured clear distance ahead rale does not apply to perpendicularly positioned vehicles at intersections. The majority states that the assured clear distance instruction was inappropriate in Reifel, as “[f]irst, the rale applies only to static or essentially static objects, it was inapplicable to this situation in which the vehicles were in motion and were perpendicularly positioned.”

Initially, I note that the statute specifically makes reference to the application of the assured clear distance rule to intersections. 75 Pa.C.S. § 3361 provides: “Consistent with the foregoing, every person shall drive at a safe speed when approaching and crossing an intersection____” Thus, the statute clearly contemplates the application of the rale to intersections, where some vehicles are traveling in a perpendicular direction relative to each other. Moreover, in Unangst, which the majority relies upon, the court clearly stated that the assured clear distance rale can apply to intersections where the vehicles were both in motion and traveling in a perpendicular fashion. Unangst, at 466, 344 A.2d at 699.

*249 The Unangst Court, in its discussion of Enfield v. Stout, 400 Pa. 6 , 161 A.2d 22 (1960), explained the reason for the application of the rule to this situation as follows:

The fact that the obstacle was moving in Enfield does not necessarily indicate that “moving” objects are included within the rule. It must be noted that the object in that case, a truck, was moving across the intersection and in the path of an oncoming car. This lateral movement, from the point of view of the calculation of time-distance, is of little moment. The truck in Enfield was essentially a static object because its movement did nothing to reduce the assured clear distance ahead for the the oncoming car.

Id. 235 Pa.Super. at 466, 344 A.2d at 700. This characterization of a vehicle traveling across an intersection as akin to a static object is a sensible legal fiction as regards the assured clear distance ahead rule, because it is consistent with the purpose of the rule. The purpose of the rule is to ensure that “such control be maintained as will enable a driver to stop and avoid obstructions that fall within his vision.” Mickey v. Ayers, at 517-18, 485 A.2d at 1202 (quoting Unangst at 463, 344 A.2d at 698). An intersection is an inherently more dangerous stretch of road than others because of the possibility that vehicles approaching the intersection may have to stop suddenly when another vehicle fails to yield the right of way. The Pennsylvania Supreme Court has stated in this regard:

While the driver of an automobile on a through highway may properly assume that one approaching that highway on a stop street will perform his legal duty to stop and yield the right of way ..., still the right-of-way on a through highway is a qualified one and the driver of an automobile thereon must take precautions in regard to the control and speed of his car and keeping alert lookout for cars approaching the intersection as a reasonable prudent man solicitous of his own safety.

Enfield 400 Pa. at 12 , 161 A.2d at 25 . Thus, I believe that the majority’s statement regarding the application of the assured clear distance ahead rule to moving vehicles at intersections, *250 to be unsupported by our caselaw and to fail to adequately address the cogent reasoning of Enfield and Unangst.