Osborn v. Cline

• Decision Date: 27 February 1934
• Citation: 263 N.Y. 434,189 N.E. 483
• Parties: OSBORN v. CLINE.
• Court: New York Court of Appeals Court of Appeals

263 N.Y. 434

189 N.E. 483

OSBORN

v.CLINE.

Court of Appeals of New York.

Feb. 27, 1934.

Action by Fred B. Osborn against Arthur E. Cline. Judgment of Trial Term for plaintiff was affirmed by the Appellate Division (236 App. Div. 710, 258 N. Y. S. 998), and defendant appeals.

Judgments of Appellate Division and Trial Term reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, Fourth department.

T. Arthur Hendricks, of Watertown, for appellant.

James M. Reynolds, of Watertown, for respondent.

CRANE, Judge.

Arthur E. Cline, the defendant, operated in Franklin street, Watertown, a gas and service station, and in connection therewith an open air parking ground for automobiles. There was an entrance and an exit on each side of a small building which was approximately in the center of the front of the lot, and the space used for parking was in the rear of the building. In connection with the service station, the defendant operated a taxi service and a store. The yard was fifty feet wide and one hundred and fifty feet deep. The usual fee charged by the defendant for parking by the day was 25 cents. The men operating the gas tank were also charged with the duty of looking after the cars. In various places on the walls inclosing the yard were printed signs reading, ‘We are not responsible for loss or damage.’ There was no system of checking, so that people coming for their cars took them and drove away. There were means of access to the yard from other points than the main front entrance. All the men at the station had other duties than that of looking after the cars. The defendant had instructed his employees to always tell persons who parked their cars to lock them.

Fred B. Osborn, a resident of the village of Adams, owned a Nash coupé automobile. His wife drove it. On June 25, 1929, she, with her sister, Nancy Filson, drove into Watertown about 2 o'clock in the afternoon and parked in the defendant's yard. An employee named Bushnell told her where to put it. Mrs. Osborn says that she asked Bushnell if it was necessary to lock the car, and that he said no, it was perfectly safe, that there were men around all the time who would watch it. This Bushnell denied, saying that he told her that it was necessary, that it was up to her, and referred her to the sign on the wall. Anyhow, she did not lock it and left the key in the switch. The sign, Mrs. Osborn states, she did not notice. When she came back at 3 o'clock, the car was gone-stolen. Later the car was found in a ditch, badly damaged. This action was commenced to recover the cost of the repairs on the ground that the defendant was negligent as a bailee. The defendant insisted that he was not a bailee, that he simply rented out space for parking, and that any loss was due to the negligence of the plaintiff's wife in failing to lock the car and take the key with her.

The trial judge charged the jury as a matter of law that Mrs. Osborn was a bailor and the defendant a bailee, so that the latter was bound to exercise that degree of care and prudence which a reasonably careful man would take for the safety of his own property. He also refused to permit the jury to consider the question of Mrs. Osborn's contributory negligence.

In both these particulars the judge was in error.

A person who parks his car in the street of course takes the risk of leaving it unattended. So likewise when it is left in adjoining lots or vacant places. Common knowledge informs us that there are many spots in every city and village where open spaces are used for parking at a very small fee, frequently with only a boy or man in charge to collect the fee. This is better than parking on a busy street. Circumstances vary, and instances are graded all the way up to the housed garage where cars may be left at more expense. Whether a person simply hires a place to put his car or whether he has turned its possession over to the care and custody of another depends on the place, the conditions, and the nature of the transaction. Galowitz v. Magner, 208 App. Div. 6, 203 N. Y. S. 421. We are of the opinion that the jury should have passed upon this question in this case and that the judge could not decide it for himself as a matter of law.

One of the essential elements of a bailment is that...