Ney v. Yellow Cab Co.
Decision Date | 22 October 1952 |
Docket Number | Gen. No. 45580 |
Citation | 348 Ill.App. 161,108 N.E.2d 508 |
Parties | NEY v. YELLOW CAB CO. |
Court | United States Appellate Court of Illinois |
Jesmer & Harris and Leo S. Karlin, Chicago, Leo S. Karlin, Chicago, of counsel, for appellant.
Charles D. Snewind, Chicago, for appellee.
This is an action to recover for damages to plaintiff's automobile. Defendant's motion to dismiss and for judgment was denied. Defendant stood by the motion, and the court after hearing the evidence of plaintiff entered judgment for plaintiff in the amount of $450. Defendant has appealed.
The motion to dismiss admitted the following facts: Defendant's employee while in the scope of his employment left a taxicab of defendant unattended with key in the ignition lock and the motor running. The cab was stolen. In making his escape, the thief negligently drove the cab into the plaintiff's parked car.
The conduct of the cab driver leaving the cab unattended etc. violated a provision (Sec. 189(a)) of the Uniform Traffic Act, (Ch. 95 1/2). The question presented to the trial court by the defendant's motion was whether the issue of defendant's liability, and more precisely the question of proximate cause, should go to the jury.
In February, 1948 the First Division of this court in Ostergard v. Frisch, 333 Ill.App. 359, 77 N.E.2d 537, (Niemeyer, P. J., dissenting) involving a similar question affirmed a judgment for the plaintiff. Subsequently, in November, 1951 the Appellate Court for the Third District of Illinois in Cockrell v. Sullivan, 344 Ill.App. 620, 101 N.E.2d 878, 880, reversed a judgment for the plaintiff in a similar case. That Court thought 'that the greater weight of authority in Illinois and other jurisdictions' supported the dissent in the Ostergard Case. The dissent was written on the premise, contrary to the majority premise, that flight was not shown. In the instant case, and in Cockrell v. Sullivan, the thief was in flight when the accident happened.
Defendant contends that the majority opinion in the Ostergard Case was founded on decisions of courts in the District of Columbia based on a different doctrine than followed in Illinois; in Louisiana where the majority view in the Ostergard Case does not prevail; and in Massachusetts where, since the Ostergard Case, the decision relied on in the Ostergard Case has been reversed. Defendant argues that since the Ostergard decision was rendered, courts of other jurisdictions have announced a contrary doctrine. The defendant urges us to follow the decision in Cockrell v. Sullivan as sounder and more logical than the Ostergard v. Frisch decision.
In the District of Columbia in similar cases where the primary negligence consists of the violation of a statute or ordinance, that negligence is in itself the legal or proximate cause of the subsequent injury which the law violated was intended to prevent. Ross v. Hartman, 78 U.S.App.D.C. 217, 139 F.2d 14, 158 A.L.R. 1370. Defendant correctly states that this holding goes further than the holdings in Illinois courts. In the absence of a violation of an ordinance or statute the District of Columbia courts apply the foreseeability rule. Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207, 144 F.2d 532.
We think that the decisions cited in the briefs to the Louisiana Court of Appeals in cases similar to the instant case depend upon whether or not the primary negligence consisted in the violation of a statute or ordinance. Where it has not, the rule announced in Slater v. T. C. Baker Co., 261 Mass. 424, 158 N.E. 778, is followed. Maggiore v. Laundry & Dry Cleaning Service, Inc., La.App., 150 So. 394; Castay v. Katz & Besthoff, La.App., 148 So. 76. If the primary negligence is a violation, the rule announced in Ostergard v. Frisch will probably be followed. Fulco v. City Ice Service, Inc., La.App., 59 So.2d 198, 201; Midkiff v. Watkins, La.App., 52 So.2d 573, 575.
In Massachusetts in a similar case, Galbraith v. Levin, 323 Mass. 255, 81 N.E.2d 560 the Supreme Court repudiated Malloy v. Newman, 310 Mass. 269, 37 N.E.2d 1001, cited by the court in Ostergard v. Frisch, and reaffirmed the rule in Slater v. T. C. Baker Co. The rule in the Slater Case was that larceny of an automobile and its negligent use by the thief were intervening independent acts which the defendant was not bound to anticipate and guard against. There no statute or ordinance was involved. The cases cited for the rule were Horan v. Inhabitants of Watertown, 217 Mass. 185, 104 N.E. 464; Jacobs v. New York, New Haven & Hartford R. R. Co., 212 Mass. 96, 98 N.E. 688, 40 L.R.A.,N.S., 41; Glassey v. Worcester Ry. Co., 185 Mass. 315, 70 N.E. 199.
In the Horan Case the court held that where dynamite insecurely stored in a box, was stolen by children, thrown into a fire, injuring children, the negligent storing of the dynamite was not the proximate cause of the injury. In the Jacobs Case the court held that where the plaintiff, a child, was killed by an exploding torpedo which had been negligently dropped from the baggage car of a train onto the platform, carried off the premises, and days later was exploded, the negligence of the railroad was not the proximate cause of the injury. In the Glassey Case the court held that where a large reel placed on the side of the highway, in violation of a village by-law, and rolled down the highway so as to injure the plaintiff, the wrongful act of the railroad was not the proximate cause of the injury. In each of these cases the foreseeability rule was applied. The Massachusetts Court therefore decides this kind of cases under the foreseeability rule.
In Superior Court of New Jersey in the absence of the violation of a statute, the foreseeability rule applies. Reti v. Vaniska, Inc., 14 N.J.Super. 94, 81 A.2d 377; Saracco v. Lyttle, 1 N.J.Super. 254, 78 A.2d 288. In Minnesota, the Supreme Court in Anderson v. Theisen, 231 Minn. 369, 43 N.W.2d 272 followed the Slater, Castay, and Galbraith Cases. It applied the foreseeability rule in favor of the defendant.
Sec. 448(b) of the Restatement of Torts is cited in the Ostergard dissent, in Reti v. Vaniska, Inc., and in Anderson v. Theisen. In substance it is that the act of the third person in committing a crime or intentional tort is a superseding cause of the injury to another, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless there were special circumstances from which the actor reasonably should have known that his actions were availing such a third person the opportunity to commit such a tort or crime.
Sec. 447(c) of the Restatement of Torts is cited in Galbraith v. Levin. In substance it states that the fact that an intervening act is negligent per se or done negligently does not supersede the original negligence which substantially contributed to causing the harm to another, if the intervening act is a 'normal'...
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