Rhad v. Duquesne Light Co. , 255 Pa. 409 ( 1917 )

Opinion by

Mr. Justice Potter,

This is an action of trespass brought to recover damages for personal injuries suffered by plaintiff, which he alleges resulted from the negligence of an employee of the defendant. The circumstances attending the accident, as disclosed by the testimony, were substantially these: On September 12, 1913, about midday, an automobile, belonging to defendánt, in charge of an experienced chauffeur, was driven on Bedford avenue up to the curb, headed down street, at a point where there was a considerable grade. The driver stopped the car, put on the brake, shut off the engine, and went into a restaurant for lunch. A nurse girl, who was in charge of a child, was sitting upon a door step at that point. She stepped to the automobile at the edge of the sidewalk and placed the child upon the seat. A twelve-year-old boy, passing by, stopped, put his hand upon the brake, rattled it, either for his own amusement or that of the child, and, as a consequence, the brake was -released. The car started down the hill, along the curb, and ran a short distance when a stranger got upon the car and attempted to stop it; but, before he could get it under control, it struck and injured the plaintiff, who was pushing a fruit cart in the street. At the trial, plaintiff contended that in addition to the use of the brake, the car should have been more securely guarded against the possibility of movement by having its front wheel turned against the curbstone. The defendant set up the exercise of due care upon the part of the chauffeur, in that he put on the brake and left the automobile in a safe position, from which it would not have moved had it not been for the interference of the boy. It was further contended, that the unwarranted interference of the boy, in releasing the brake, was the proximate cause of the injury, and, as the facts in this respect were not in dispute, it was urged that the question of proximate cause was one of law for the court, and should not have been left to the jury. In West Mahanoy Township v. Watson, 116 Pa. 344, Gordon, J., speaking for the court, said: “It is also urged that the question of remote or proximate cause was for the jury and was properly submitted. This would be so were there any dispute about the facts, but where, as in this case, they áre not disputed, the court should determine the question as a matter of law.” In Douglass v. N. Y. Cent. & Hudson River R. R. Co., 209 Pa. 128, it was said (p. 131) : “The rule is well settled that the injury must be the natural and probable consequence of the negligent act without probable foresight, and if the facts as to the cause of the injury are not disputed the question of proximate cause becomes one of law for the determination of the court.”

In Nirdlinger v. American District Telegraph Co., 245 Pa. 453, plaintiff sued to recover damages for loss by theft of various articles from his house which defendant had undertaken to equip with electrical burglar alarms. There was evidence that defendant had negligently failed to set the alarms, and on the same night the burglary was committed. The court below refused to instruct the jury that the damages recoverable were only those which were sustained as a result of defendant’s breach of contract, but submitted to the jury the question whether the negligence of defendant was the proximate cause of the burglary and permitted recovery of the value of the articles stolen. The judgment of the lower court was reversed by this court, and, in the opinion by Mr. Justice Stewart, he said (p. 459) : “It is to be observed that on this particular question of proximate cause there was no conflict of testimony whatever, and the fact of an intervening agency was manifest. A submission of the question therefore was unwarranted; it was clearly within the province and duty of the court to decide it.” He further said: “The result of the court’s submission of the question to the jury was a recovery by plaintiff for an act of negligence which at best was a remote cause of the loss. Admitting the facts to be as claimed by the plaintiff, the learned trial judge should have held that they did not show defendant’s negligence to have been the proximate cause of plaintiff’s loss.”

In the present case, it is undisputed that the chauffeur left the car with the brake set, and that it stood in that position until the boy interfered with it. The boy testified that he put his hand on the brake, shoved it, and rat-tied it, and the automobile started to go. He said, “I guess it started from me playing with the levers.” Here ¿hen we have a new, independent and unexpected factor, which was in itself the real occasion of the mischief. The effective cause of the injury was shown to be the interference of the boy, and it ivas not the failure of the chauffeur to use the additional precaution of turning the front wheel against the curb. Suppose that, instead of merely turning the car adrift, as he did, the boy had gotten into the seat, and started the car, and had run over some one. Could the owner of the car have justly been held responsible? The car in question was left in a position analogous to that of a horse tied to a hitching post. It could not start until it was unfastened. If a wilful or careless boy untied the horse, his action in so doing would be the proximate cause of any injury which might follow. The car did not start itself. It was started as a result of the independent intervention of the boy, and his action must, therefore, be regarded as the effective legal cause of the injury. The precise question here involved was before the courts of New York in two late cases. In Sorrusca v. Hobson, 155 N. Y. Supp. 364, defendant’s auto truck was stopped by his employee, who left the machine standing in the street with the brakes set. Some children playing in the street in some manner started it and plaintiff sustained the injuries complained of. The court said: f‘We thus have the case of a machine which was stopped with the brakes set, and remaining in that position for 15 or 20 minutes, starting —which it manifestly could not do of its own accord— while children were playing around it, and when one of them was just descending from it. Manifestly the machine was set in motion by a cause for which defendant was not responsible after it had been stopped so carefully as to discharge him from responsibility.”

In Frashella v. Taylor, 157 N. Y. Supp. 881, defendant’s car was started by some boys while the driver was in the act of delivering some goods in front of plaintiff’s premises. The facts and law were thus stated in the opinion of the Supreme Court (p. 882) : “At the trial it appeared undisputed that the automobile stopped in front of the plaintiff’s place of business. A helper left the truck to deliver some goods. While the helper was delivering the goods, the chauffeur left his seat and busied himself in the rear of the car with the goods in the' car. From that position he could not see the driver’s seat. While doing this work he felt the car start. He then''jumped off the truck, ran to the front, and jumped on again, and backed the truck out. At that time two little boys were on the driver’s seat. It appears that these boys were playing on the street, and had jumped on the truck and started it by pulling the controller and the brake. I cannot find that the plaintiff has either pleaded or proven any cause of action. The automobile was started by the wilful act of the boys, and concededly the defendant is not responsible for their act. The only negligence which the plaintiff has attempted to plead or prove is negligence in leaving the automobile in a situation where the boys could reach the lever without being seen or stopped. Such an-act does not constitute negligence. The defendant was not bound to provide against the act of wilful wrongdoers, .even though the wrongdoers were small boys.”

In the case at bar, we see no escape from the conclusion that the proximate, cause of the injury, was the interference of the boy, over whom the defendant had no control and for whose act it was not responsible.

The first and second assignments of error are sustained. The judgment is reversed, and is here entered for defendant."