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MERVINE v. SLEY SYSTEM GARAGES (09/16/60)

September 16, 1960

MERVINE
v.
SLEY SYSTEM GARAGES, INC., APPELLANT.



Appeal, No. 70, Oct. T., 1960, from judgment of Municipal Court of Philadelphia County, Feb. T., 1958, No. 884, in case of Jean P. Mervine v. Sley System Garages, Inc. Judgment affirmed.

COUNSEL

Thomas M. Thistle, with him Smyth, Straub & Thistle, for appellant.

Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.

Author: Watkins

[ 193 Pa. Super. Page 396]

OPINION BY WATKINS, J.

This is an appeal from the judgment of the Municipal Court of Philadelphia entered on a verdict of a jury in favor of the plaintiff-appellee, Jean P. Mervine, and against the defendant-appellant, Sley System Garages, Inc.; and the dismissal by the court en banc of motions for a new trial and judgment n.o.v.

The action is one of assumpsit by the plaintiff to recover damages to an automobile, caused by the negligent conduct of defendant's employees while said automobile was in the care of the defendant, as a bailee, on its parking lot. The record shows that on December l, 1956, the appellee left his car on the defendant's parking lot at Seventeenth Street and Benjamin Franklin Parkway in Philadelphia. The car was left in the care of a parking lot attendant and was in good condition. At that time there was some ice and snow on the lot with some of the parking area cleared. When the plaintiff returned for his car he found it in a damaged condition and inoperative. It was located on a portion of the lot which was covered with ice and snow. Pieces of metal were observed lying under the automobile, which he later learned were parts of the transmission. He also observed cavities in the snow and ice, both in the front and behind the rear wheels of the automobile. The cost of the repairs amounted to $394.45. The defendant denied the car was damaged through the negligence of his employees but that the damages were brought about solely as a result of the defective condition of the plaintiff's automobile and its parts when bailed to the defendant. The opinion of Judge BURCH, of the court below, succinctly reviews the testimony and the issues raised by this appeal: "The plaintiff testified that he drove his Packard sedan on to the parking lot and drove the sedan along side of

[ 193 Pa. Super. Page 397]

    the attendants' building and left it there; that it had recently snowed and there was snow on the lot. When he returned about one hour and a quarter later, the automobile was stopped parallel to 17th Street and parts of the transmission were in the snow under the automobile. The automobile could not be operated.

"Anderson Beaver Winters, on behalf of the plaintiff, testified that he was engaged in the automobile repair business and that he repaired the plaintiff's automobile after the occurrence; that the repairs were necessary and that the costs of the repairs amounted to $394.45; that the band of the transmission was burned and bent and was badly worn in spots. Normal operation of the automobile could not bring about this condition to the band.

"At this point the plaintiff had shown the bailment, the return of the automobile in a damaged condition and the amount of his loss. The duty then devolved on the bailee to go forward with evidence showing the circumstances under which the automobile was damaged. The defendant called two witnesses for this purpose. The first was Charles Augustus Parks, who at the time of the occurrence was employed by the defendant as a parking lot attendant. He testified that he operated the automobile on said date; that he moved the automobile from the attendants' building about ten feet westward and then drove the automobile so that it faced north parallel with 17th Street. He put the automobile in reverse to park it and as he stepped on the accelerator 'the handle jumped back in the drive; something popped. ... There were pieces of metal on the ground and some grease'; that he tried to drive the automobile and it would not move. He does not recall whether there was snow or ice in the slot where he intended to park the automobile.

"The other witness, James L. Bailey, testified that he was the parking lot ...


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