Plaintiffs' next complaint it that the trial judge erred in refusing his fourth point for charge, which was as follows:
'In permitting children to use, operate, and test armored cars, such as the 8-ton M-20's involved in the accident out of which this cause of action arose, the VALLEY FORGE MILITARY ACADEMY owed a duty to make certain that a proper and adequate standard of safety was provided in the installation and maintenance of such devices for he use of children.'
In our view the point, as drawn, was likely to confuse the jury. The phrase 'owed a duty to make certain' carries with it a connotation of absolute liability, inconsistent with plaintiffs' second point which was affirmed and read. The second point stated, in essence, that Valley Forge was liable if it failed in its duty, owed to the cadets, 'to supervise the activities of the Academy and the student-cadets attending the Academy in a proper, adequate, and non-negligent manner.' This gave the plaintiff all that he was entitled to, and the refusal of plaintiffs' fourth point was not error.
Plaintiff urges two additional grounds for a new trial. We have considered them carefully, and find them so devoid of merit as not to warrant discussion.
Accordingly, the plaintiffs' motion for a new trial of their action against Valley Forge will be denied.
We turn now to consideration of plaintiffs' motion for a new trial of their action against the United States.
The trial judge found, as fact, that there was no mechanical defect or failure in the M-20 armored vehicle that struck the minor plaintiff; and concluded as a matter of law that the United States was not negligent.
Plaintiffs contend that the trial judge erred in failing to find as a fact and to conclude as a matter of law, as follows:
'The UNITED STATES OF AMERICA, in the instant case, was in the position of a bailor of the armored cars, the M-20's, and, in the absence of a special contract of representation, it owed an obligation or warrant, similar to the implied warranty of fitness in the sale of personalty, that the thing or property hired for use shall be reasonably fit for the purpose, or be capable for the use known to be intended, that is, that it shall possess the qualities usually belonging to things of that kind when used for the same purpose, and the bailor, the UNITED STATES OF AMERICA, is liable to persons using the thing or chattel bailed at the bailee's invitation for injuries caused by reason of the thing's not being in proper condition when delivered or being fit and suitable for the purpose for which it is to be used.'
Plaintiffs brought this action against the United States under the Tort Claims Act, basing their claim on negligence. They made no claim sounding in assumpsit, based on a breach of implied warranty of fitness. The requested finding, therefore, had no possible application.
The request was inappropriate for the further reason that the trial judge found, on adequate evidence, that there was no mechanical defect or failure in the armored vehicle that struck the minor plaintiff.
Plaintiffs' next complaint if that the trial judge erred in failing to find as a fact and to conclude as a matter of law, as follows:
'Where, as here, the UNITED STATES OF AMERICA knew that children were to use the chattel or thing bailed, to wit, the M-20 armored cars, and the UNITED STATES OF AMERICA continued to maintain the said vehicles, it had a duty to make the said vehicles reasonably safe for the use intended, as well as to make certain that the said article, thing, or chattel was properly maintained, and, in the alternative, the bailor had a duty to give prompt and adequate warning if it knew or had reason to know of the danger of using the chattel of thing.'
In answer to interrogatories, the United States, referring to the M-20 armored cars, stated: 'Maintenance of the vehicles was done by Army personnel. First and second echelon maintenance was done by Sergeant Williams and major repairs were dond by the Philadelphia Quartermaster Depot. No Army personnel were concerned with the operation of these vehicles.' It follows that the United States did have 'a duty to make the said vehicles reasonably safe for the use intended.' The trial judge's finding of fact and conclusion of law, supra, necessarily include a finding that the United States performed that duty.
Finally, plaintiffs contend that the trial judge erred 'in not finding as a fact that it was the failure of the United States Government in not properly equipping or maintaining the armored cars with a cut-off key ignition system, which failure proximately caused the injury to the minor-plaintiff.'
It is a fact that the armored cars were not equipped with what counsel calls a 'cut-off key ignition system'. These vehicles were designed and made for a highly specialized and practical purpose, -- warfare and training therefor. Inferentially, every detail of construction and equipment was a matter of careful planning and design, in the light of the purpose of the vehicle. In the complete absence of any evidence to the contrary on the subject, we are unwilling to say that it was negligence per se to fail to equip these vehicles with a particular kind of ignition system.
Moreover, the evidence is far from clear on the question f causation. Witnesses gave differing versions as to what really happened to bring about this most unfortunate accident. There was no persuasive evidence that the ignition system had anything to do with the occurrence. We find no error in refusal to find in accordance with plaintiffs' request.
For the foregoing reasons, plaintiffs' motion for new trial of their action against the United States will be denied.
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