
    Commonwealth v. Kibbey
    
      William F. Morgan, for Commonwealth.
    
      Joseph A. Massa, Jr., for defendant.
    
      July 1, 1977
   WOLFE, J.,

Defendant was charged and found guilty before the magistrate of violation of The Vehicle Code of April 29, 1959, P.L. 58, 75 P.S. § 1008(c), providing the driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any intersection of highways, inter aha.

The appeal facts are not in dispute that on August 17, 1976, at approximately 9:30 a.m. defendant passed a vehicle that had pulled into his lane of travel and in the same direction immediately ahead of him and within a distance of approximately 150 feet commenced a turn into the opposite lane of travel to enter another intersection. Defendant’s testimony which was not in any way disputed was as he first observed the vehicle pull from the first intersection he had to make a decision whether to pass or attempt to stop and decided to pass but before it could be completed this vehicle pulled into the opposite lane of travel causing a collision.

These two T intersections spaced at very short distance apart were unmarked as such and there was no indication on the route into which they traversed indicating an intersection was there by any markings on the main highway, Route 27. Additionally these two intersecting roads are unimproved and there is apparently no way to discern that they exist except by local knowledge or when one is immediately upon them.

There can be no doubt defendant is technically guilty of passing or attempting to pass a vehicle at an intersection as the code provides. However, we are of the opinion that there are overriding facts that exonerate this technical breach. Defendant was not speeding, it was a clear, dry morning and he had no knowledge of the existing intersections with the highway upon which he was traveling. Defendant was confronted with an emergency judgment and in exercising that judgment the breach occurred. We have no reason to discount his belief a rear-end accident may have occurred had he attempted to stop. Considering the circumstances here confronting defendant we find there is justification in his action and enter the following order verdict.

ORDER

And now, July 1, 1977, defendant is found not guilty as charged, is discharged from the court and his bail released.  