Dissenting Opinion by
Mr. Justice Roberts:In the absence of a factual determination that Truck Power was in charge or in control of the disabled vehicle at the time of the accident, there is no basis for imposing liability upon appellants.
The court below opened that portion of its charge relating to the liability of Truck Power with: “There is no statute that requires a service vehicle of that type to be equipped with flares . . . .” With specific regard to service vehicles, that aspect of the charge is accurate as far as it goes. However, The Vehicle Code does cover the situation in general terms. Section 836(b) of the Code, April 29, 1959, 75 P.S. §836,1 provides: “Whenever any such [commercial, etc.] vehicle and its lighting equipment are disabled, during the period when lighted lamps must be displayed on vehicles, and such vehicle cannot immediately be removed from *38the main traveled portion of a highway outside of a business or residence district, or if the lighting equipment on any such vehicle is not disabled but, due to the position of such vehicle upon the highway or by reason of contours or curves in such highway, it may constitute a menace to other vehicular traffic, the operator or other person in charge of such vehicle shall cwuse such flares, lanterns, flashing signals or other signals to he lighted and placed upon the highway . . . .” (Emphasis added.)
The crucial issue under the statute is whether Truck Power had assumed control of the disabled vehicle and was under the statutory duty, as mandated by the Code, to cause flares to be placed on the highway at the front and rear of the disabled vehicle. That basic question admittedly was not submitted to the jury nor was it admitted of record.
The court below did charge as follows: “There is no statute that requires a service vehicle of that type to be equipped with flares but in your judgment would somebody who is in this business of going out to service trucks — and it was night time when the call was made —go prepared with flares to take care of lighting up any disabled vehicle they found, and if you find that a reasonably careful and prudent person under those circumstances would have gone so prepared, then the failure either to have them or the failure to put them out, if they did have them, would constitute negligence; and again you have the problem — was this negligence a proximate cause?”
Even assuming, as the majority holds, that such a common law duty is imposed upon a firm which provides highway service, the court below failed to instruct the jury as to that point in the course of conduct at which liability for breach of that duty may be incurred. Surely, such duty cannot be said to have been breached prior to the time at which the operator *39of tbe service vehicle bas assumed control of tbe situation or, in tbe language of Tbe Yebicle Code, is “in charge of such [disabled] vehicle.”
In my opinion, a breach of tbe duty imposed by tbe majority upon Truck Power cannot be found, either under tbe statute or common law, unless it first be determined by tbe jury that tbe driver for Truck Power did, in fact, take charge of tbe disabled vehicle. The record is clear that this issue was not submitted to tbe jury and no such finding was made.
Tbe error below may be corrected only by the grant of a new trial. Therefore, I dissent.
Mr. Chief Justice Bell joins in this dissenting opinion.This provision was amended subsequent to tbe aeeident here in question. However, there was no change with respect to the individual upon whom rests the duty to place the warning lights or flares.