Opinion by
Lee E. Levengood appeals from an order of the Court of Common Pleas of Berks County affirming an order of the Secretary of Revenue suspending appellant’s motor vehicle operating privileges for a period of three months. Appellant was involved in an automobile accident which resulted fatally to a pedestrian.
Supersedeas was denied by this Court. According to the printed record the suspension order expired April 29, 1954, which rendered the case moot. It was disclosed, however, after argument, that the Commonwealth and appellant had agreed, despite the rulings of the Secretary and the court, that appellant should continue his operating privileges pending the final disposition of this appeal. By our direction a written stipulation to this effect was filed in this Court.
The question presented by this appeal is whether or not, in this fatal accident, the charge of negligence was of such a nature that it would warrant a court, in its discretion, to suspend the license.
In Commonwealth v. Bushey, 368 Pa. 67, 68, 82 A. 2d 39, it was said: “. . . By the use of the word 'negligence’, we necessarily implied negligence of such a character that, in the discretion of the court, the defendant should have inflicted upon him the punitive
The evidence, consisting chiefly of a statement signed by appellant, is meager. According to the police officer who secured the statement, the accident occurred on January 28, 1953, at 8:30 p.m.; the weather was clear and dark; there was no road lighting; defendant ivas traveling forty miles an hour in a fifty mile zone; deceased was wearing dark clothing; as a car approached in the opposite direction, appellant lowered Ms lights. Appellant related in his statement that “. . . at the instant I hit this man, I saw this black object — Ms back; I heard the smack. . . .” In this statement also appear the following questions and answers between a county detective and appellant: “Q. Nov/, how far ivas this man away from you when 3rou first saw him? A. I don’t believe it was from here to the door when I saw him. Q. In other words, somewhere between ten and fifteen feet? A. Yes.”
The learned trial judge, upon this evidence, stated, in respect to appellant’s negligence: “, . . He admits that he did not see the pedestrian until he was 10 to 15 feet away, when he applied his brakes and then traveled about 25 to 30 feet. The assured clear distance rule requires that a driver keep his vehicle under such control that he can always stop within the distance that he can clearly see. . . .” He also stated: . . the [appellant] not only could but did see the deceased when he was in front of the automobile. This being so, he was negligent. ...”
Order reversed.