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ANDERSON v. BUSHONG PONTIAC COMPANY (06/26/61)

June 26, 1961

ANDERSON, APPELLANT,
v.
BUSHONG PONTIAC COMPANY, INC.



Appeals, Nos. 181 and 182, Jan. T., 1961, from judgment of Court of Common Pleas of Delaware County, March T., 1960, No. 1338, in case of Margot Anderson v. Bushong Pontiac Company, Inc. Judgment reversed.

COUNSEL

Harvey B. Levin, with him John J. Harding, and Bernstein & Bernstein, for appellant.

George J. McConchie, with him John F. Cramp, for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Eagen

[ 404 Pa. Page 384]

OPINION BY MR. JUSTICE EAGEN.

This is an action for personal injuries, wherein the court below sustained preliminary objections in the nature of a demurrer to the complaint and entered judgment for the defendant. A subsequent request to amend the complaint was refused because the court concluded that the additional facts pleaded failed to state a cause of action. Separate appeals were filed in due course from the judgment entered and the subsequent order denying the right to amend.

The facts set forth in the amended complaint may be summarized as follows: The defendant was the owner and operator of a used car lot in Upper Darby, Pennsylvania, whereon many automobiles were displayed for sale purposes. On Friday, May 9, 1958, a fourteen-year-old boy stole the keys from a Pontiac sedan, one of the cars displayed on the lot. The theft was discovered and reported to the police on the same day. The boy who purloined the keys, and other boys of like age, made a habit of playing in and about the cars on the lot at the time the keys were taken and for some time prior thereto. The defendant failed to remove the car from the lot, or to use any other precaution to safely lock the car to prevent its operation, after the keys were stolen. On Sunday, May 11, 1958, while the used car lot was unattended, another young man also fourteen years of age, started the Pontiac sedan and drove it off the lot, using the keys that had been stolen two days previously. The car was operated in such a grossly negligent manner that it mounted a public sidewalk, struck the plaintiff, a pedestrian, causing extremely

[ 404 Pa. Page 385]

    serious injuries and necessitating the amputation of her right leg. Claiming that the negligence of the defendant was a proximate cause of the accident and her resulting injuries, this suit was instituted.

The facts pleaded stated a cause of action and the court erred in ruling to the contrary. The case is one for a jury's determination if the proof measures up to the allegata. A summary judgment should be entered on the pleadings only in a case that is free and clear from doubt: Rogoff v. The Buncher Co., 395 Pa. 477, 151 A.2d 83 (1959).

An automobile is a potentially dangerous instrumentality, particularly so, when in the control of an incompetent operator. The right to drive a car on the public highways of this Commonwealth is strictly regulated through a licensing system which prohibits children under sixteen years of age from enjoying this privilege. This is so because they are considered lacking in the maturity and the necessary ability to safely operate a device that can be one of death and destruction in the hands of the wrong person. All of this is common knowledge. All one has to do is to read the daily newspapers to know the proclivities of the younger generation in this regard.

Herein the defendant knew the keys of one of its cars located on an open lot had been stolen. Starting the motor by one who gained possession of the keys was a simple matter, even for a teenager. It also had every reason to know that children of immature years frequented this lot and used it for recreational purposes at or about the time of the theft. Despite this knowledge, it saw fit to do nothing except report the theft to the police. The car was permitted to remain on an open and unattended lot. After the keys had been stolen and such fact was known, it ...


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