Appeal from judgment of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1968, No. 4680 E, in case of William N. Dolan v. Philadelphia Transportation Company.
Edward Greer, for appellant.
John E. Walsh, Jr., for appellee.
Wright, P. J., Watkins, Montgomery, Hoffman, Spaulding, and Cercone, JJ. (Jacobs, J., absent). Dissenting Opinion by Montgomery, J.
[ 217 Pa. Super. Page 369]
Dissenting Opinion by Montgomery, J.:
I believe that judgment should be entered for the defendant-appellant in this case for the reason that it has not been shown to have been negligent under the facts.
On March 14, 1968, Maurice J. White, employed as a trolley operator by Philadelphia Transportation Company, defendant-appellant, in this trespass action, stopped his trolley at the loop at 61st Street and Baltimore Avenue and left it unattended. The doors were left open and the power pole was not disconnected. There was no lock on the trolley's power switch, as is found on automobiles. The parties having agreed that in Mr. White's absence, an unknown male, approximately eighteen, stole the trolley and negligently operated it, causing personal injuries to the person and property of William N. Dolan, plaintiff-appellee, in the amount of $1,950, the only remaining question, which was decided in plaintiff's favor by Honorable Bernard J.
[ 217 Pa. Super. Page 370]
Kelley, sitting without a jury, was whether the defendant ...