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January 14, 1955


Appeal, No. 120, April T., 1954, from judgment of Court of Common Pleas of Allegheny County, 1952, No. 292, in case of Mary Ellen Maloney v. William R. Harless, trading as Harless Motor Sales Company. Judgment affirmed.


H. N. Rosenberg, with him Rosenberg & Rosenberg, Pittsburgh, for appellant.

Kenneth P. Christman, Pittsburgh, for appellee.

Before Rhodes, P.j., Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.

Author: Wright

[ 177 Pa. Super. Page 304]


Mary Ellen Maloney brought suit in assumpsit against William R. Harless, trading as Harless Motor Sales Company, to recover damages for the destruction of her Mercury automobile by fire while it was in defendant's garage for repairs. At the conclusion of the trial, counsel for defendant presented a point for binding instructions. This point was refused, and the case was submitted to the jury. After verdict for the plaintiff, the court en banc granted defendant's motion for judgment n.o.v. This appeal followed.

On the evening of December 5, 1951, about 8:30 p.m., appellant's Mercury sedan was driven by her husband to appellee's garage for the purpose of having certain repairs made the next day. The husband testified that he was instructed to leave the car in the driveway of the garage and that Weber, appellee's sales manager, drove the car inside. The husband then went to the car and left therein a note for the service man containing detailed instructions for the repairs. He stated that, when he opened the car door to place the note inside, there was no evidence of fire and that he was not smoking at the time. Weber testified that

[ 177 Pa. Super. Page 305]

    appellant's automobile was the last car placed in the garage that evening, that he had driven it from the driveway into the garage, that its position was not changed thereafter, that he passed the car when he left the garage at closing time, shortly after 9:00 p.m., and that he did not notice anything wrong about it. Similar testimony was given by appellee and by Sadler, another employe. Weber received a telephone call about 11:15 p.m., and when he arrived at the garage he found firemen at work extinguishing the fire. The fire was not general, but was confined to the interior of appellant's automobile.

We had occasion to consider the relevant legal principles in Atkins v. Racquet Garage Corp., 177 Pa. Superior Ct. 94, 110 A.2d 767. What we said there applies as well here, and need not be repeated. In the case at bar, appellant proved the storage of her car, demand for its return, and destruction thereof by fire. Thus appellant made out a prima facie case which shifted to appellee the duty to go forward with explanatory evidence. It did not, as appellant argues, shift to appellee the burden of proof to show that the loss was not due to his negligence. Appellee then produced testimony giving an account of the matter. This explanatory evidence did not disclose negligence on appellee's part. It was therefore proper for the court below to enter judgment n.o.v.

Appellant places principal reliance upon Wendt v. Sley System Garages, 124 Pa. Superior Ct. 224, 188 A. 624; Sign Animation Corp. v. Wilkie Buick Co., 124 Pa. Superior Ct. 234, 188 A. 628; and Downs v. Sley System Garages, 129 Pa. Superior Ct. 68, 194 A. 772. But these cases were re-examined and explained in the leading case of Schell v. Miller North Broad Storage Co., 142 Pa. Superior Ct. 293, 16 A.2d 680 in which the correct rule was set forth. And see Madrid Motor

[ 177 Pa. Super. Page 306]

    to the plaintiff and giving the benefit of every fact and inference of fact which may reasonably be deduced from the evidence there is no evidence or inference therefrom which shows that the fire which destroyed plaintiff's car was a result of negligence of the defendant or his employees or failure to adopt reasonable precautions to prevent a fire. Because the fire might have been prevented by hiring a watchman when such is not done by reasonably prudent persons under similar circumstances does not prove negligence".


Judgment affirmed.


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