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DEMAINE v. BRILLHART (04/12/73)

decided: April 12, 1973.

DEMAINE, APPELLANT,
v.
BRILLHART



Appeal from order of Court of Common Pleas of York County, Aug. T., 1968, No. 383, in case of Joseph DeMaine, Jr., a minor, by his parent and natural guardian, Joseph DeMaine, Sr. v. Gary Brillhart.

COUNSEL

Victor Dell'Alba, for appellant.

Robert J. Stewart, with him Liverant, Senft & Cohen, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 224 Pa. Super. Page 243]

This is an appeal in a trespass case from the lower court's refusal to grant plaintiff a new trial after a jury verdict in favor of the defendant. Plaintiff argues that the trial judge erred in his charge to the jury.

The facts are as follows:

On the evening of August 19, 1966, plaintiff, then age 17, with four other minor friends, including Jimmy Christmas, then age 12, and Denise Ferree, then age 15, were passengers in an automobile driven by defendant Gary Brillhart, then age 17. Defendant stopped his car on a steep grade and, according to his testimony, set his emergency brake, turned off the lights, shut off the ignition, and got out of the car along with plaintiff and two of the passengers. They walked 50-90 feet down the hill to talk to some friends who were in a car behind defendant's car. Unfortunately, in his car the defendant had left the key in the ignition and also the 12 and 15-year-old passengers. Defendant also failed to turn his wheels into the curb or highway, as required by The Vehicle Code.*fn1

[ 224 Pa. Super. Page 244]

Shortly after defendant and plaintiff got out of the car, Denise, the 15-year-old, crawled from her seat in the back of the car into the front driver's seat. The testimony is conflicting as to her activities with regard to the car's controls and steering wheel.*fn2 It is not contradicted, however, that the car began to move down the steep grade, picking up momentum, with motor running, striking the plaintiff who, with his back to the car was, with defendant, talking to his friends.

With this set of facts in evidence, the trial judge charged as follows: "If you determine that the car came back down the street solely because the defendant did not put on his emergency brake effectively and because he did not turn his wheels in and that Denise Ferree had nothing to do with it then this would be negligence and this could be the proximate cause of the accident to the plaintiff. On the other hand, ladies and gentlemen, if you decide that even though the defendant

[ 224 Pa. Super. Page 245]

    may have improperly parked the car in violation of the statute, if you find that Denise is the one who somehow got the car started then that is the end of the case and you must find in favor of the defendant because it is the law that the defendant could not foresee and had no duty to foresee that Denise would start the car. . . ." Plaintiff contends that this instruction improperly withdrew from the jury's consideration two important issues constituting a main theory of liability relied upon by him, to-wit: whether or not defendant was negligent in leaving his vehicle unattended with the key in the ignition, with two youthful passengers therein, and whether Denise's conduct should have been foreseen by him. We must agree with the plaintiff that these issues were for the jury's consideration under the evidence in this case and that the trial judge therefore erred in charging "it is the law that defendant could not foresee and had no duty to foresee that Denise would start the car." In Glass v. Freeman, 430 Pa. 21 (1968), the court held it was foreseeable that the 7-year-old son of the defendant would, in his father's absence, climb aboard and drive the tractor which defendant had been operating and had for a short time left unattended with its motor running. The court there further reasoned: "Since it was foreseeable that the boy might attempt to drive the tractor, it was also foreseeable that he would drive it negligently. A seven-year-old hardly can be expected to have the ability or judgment to operate a piece of heavy equipment safely." The court in that case rejected ...


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