Moran v. Borden Co.
Decision Date | 31 March 1941 |
Docket Number | Gen. No. 41487. |
Citation | 33 N.E.2d 166,309 Ill.App. 391 |
Parties | MORAN v. BORDEN CO. |
Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Cook County; John T. Cummings, Judge.
Action by Arnold Moran, Jr., a minor, by his next friend and father, Arnold Moran, against the Borden Company for injuries sustained when struck by an electric truck owned by the defendant. From a judgment for the plaintiff for $5,000, the defendant appeals.
Affirmed.
Philip S. Campbell, of Chicago, for appellant.
Earl J. Walker, of Chicago, for appellee.
Plaintiff brought an action against defendant to recover for personal injuries for the claimed negligence of defendant occasioned by defendant leaving one of its electric delivery trucks standing in an alley unattended and without removing the key, in violation of par. 189, § 92, ch. 95 1/2, Ill.Rev.Stats.1939. There was a verdict and judgment in plaintiff's favor for $5000 and defendant appeals.
The record discloses Walter Jacklin was employed by defendant delivering milk and other dairy products in a residential section of Oak Park. He had been employed by defendant for about 9 years. In performing his work he drove one of defendant's electric trucks. The territory he served was about half a mile square between Harrison street on the north, Roosevelt road on the south, Austin avenue on the east, and Ridgeland avenue on the west.
September 3, 1937, he completed his route about 1 P.M. his last stop being at Ridgeland avenue and Roosevelt road which was the southwest corner of his territory. Defendant's West Suburban plant, out of which Jacklin operated and to which he was to return, was located at 7301 Harrison street, Forest Park, Illinois, about a mile west of the northwest corner of Jacklin's territory. The shortest route to return from the last delivery made by Jacklin to the plant would be to travel west on Roosevelt road to Harlem avenue which is 7200 west, then north some 5 or 6 blocks to Harrison street and then 2 blocks west to the plant. Jacklin did not return to the plant after he made his last delivery but went home for lunch. He lived at 1309 S. Clarence avenue, Berwyn, a distance of 5 or 6 blocks southwest from the place of his last delivery. He drove the truck in the alley and stopped it in the rear of his home facing south; he did not remove the plug or key from the truck. At the time he stopped the truck his two sons, Leroy, 15, and John, 11, were in the alley. Jacklin went into his home and waited for his wife to prepare lunch. He sat down and was about ready to make out a report of the business he had done that day. The boys were in the yard behind the house. He asked Leroy to go out to the truck and get his route book. After Leroy went to the truck, John came into the house and asked for some chocolate milk and Jacklin told him to go to the truck and get a bottle of it. When John got to the truck Leroy was on the running board, he had the route book in his hand. While John was in the truck, plaintiff, a neighbor boy who lived at 1325 S. Clarence avenue, rode north in the alley on his bicycle on the east side of the truck. John got the chocolate milk and the two Jacklin boys began to move various controls on the truck to see which operated the lights; John pressed a button and the horn blew. The boys asked plaintiff to look to see if the lights went on; he first went to the front of the truck, then to the rear on his bicycle and was about two feet back of the truck to see if the rear lights went on. About that time John pressed a button He then pressed simultaneously both buttons in the roof and as he did so the truck started in reverse, backed up, struck plaintiff and injured him severely.
After the accident, on the same day, Walter Jacklin was discharged by the defendant company.
Par. 189, § 92, ch. 95 1/2, Ill.Rev.Stats.1939, provides: “No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key.” The key mentioned in the statute is an instrument by means of which the electric current is turned on or off. When it is removed there is no possibility of the power being applied so as to move the truck. It is undisputed that the key or plug was not removed by Jacklin when he stopped the truck in the alley and went into his home.
Defendant contends it is not liable because, (1) the failure to remove the key from the truck was not the proximate cause of plaintiff's injuries, (2) Jacklin was acting outside of the scope of his employment, and (3) plaintiff was guilty of contributory negligence.
(1) Defendant contends the “immediate cause of the accident was the tampering with the controls of a truck by two boys who had been sent to the truck by their father” and not the failure of the father to remove the key or plug when he stopped the truck in the alley; that the violation of the statute by defendant's employee Jacklin in his failure to remove the key as required by the statute merely furnished a condition by which the injury was made possible by the subsequent act of third persons and therefore defendant was not liable, citing Seith v. Comm. Electric Co., 241 Ill. 252, 89 N.E. 425, 24 L.R.A., N.S., 978, 132 Am.St.Rep. 204. A number of other authorities are discussed, analyzed and applied. We think the question whether the violation of the statute contributed to cause plaintiff's injury was for the jury. Wintersteen v. Nat. Cooperage Co., 361 Ill. 95, 197 N.E. 578.
In that case the court in discussing “proximate cause” said: ...
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