No. 536 October Term, 1977, Appeal from the Order Entered November 15, 1976 of the Court of Common Pleas of Northampton County, Civil Division - Law at No. 248 April Term, 1973.
Martin D. Cohen, and Gus Milides, Easton, for appellants.
Stephen J. Kreglow, Easton, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 249 Pa. Super. Page 522]
Appellant contends that the lower court erroneously denied his motion to remove a compulsory non-suit because the determination of whether appellee's conduct negligently caused appellant's*fn1 injuries was a jury question. Because we find that the lower court properly granted a compulsory non-suit, we affirm the lower court's order.
On May 8, 1973, appellant filed a complaint in trespass which alleged that appellee's failure to exercise proper care of his property caused appellant's injuries. At trial on October 28, 1973, appellant presented the following testimony. On August 28, 1971, the seven year old appellant and two young friends went to appellee's garage to obtain a map. Appellee operated a gas station and repair and towing service located in a residential section of Easton, Northampton County, about two blocks from appellant's home. Pursuant to an agreement with the City of Easton,*fn2 appellee towed abandoned cars and cars involved in accidents. He stored them, together with the cars he was to repair, in an unenclosed lot behind the garage. Neither appellant nor his friends had ever played in the rear lot.
Appellant and his friends went into appellee's lot, without permission, to look for "something good" in the cars. During their search, the boys discovered an unlocked 1956 Pontiac. Because of damage on the left side of the car, it could not be locked. While exploring inside the car, one of appellant's
[ 249 Pa. Super. Page 523]
friends opened the glove compartment and found a box of .22 caliber bullets. Each boy took a number of bullets.
After leaving appellee's property, the boys tossed the bullets against walls as they proceeded to a nearby tunnel. Once inside the tunnel, appellant placed the bullets in a matchbox. When appellant blew on the flame, the bullets exploded and blinded appellant's left eye.
Appellee, called as of cross-examination, testified as follows. Nine days prior to the events in question, appellee towed the wrecked 1956 Pontiac to his lot for storage. Franklin Benson, the car owner, had placed the bullets in the glove compartment before the accident. When appellee towed the car from the accident site, neither the police officer nor appellee's employees searched the vehicle. Appellee testified that it was not his policy to search the cars he towed because he believed that he lacked the authority to search the personal property of others. However, he stated that he removed and stored in the garage articles left in plain view inside unsecured towed cars. No fence surrounded the lot, nor were there warning signs on the property. While appellee and his employees knew that children occasionally played on the property, they had never previously found or observed children in the cars.
At the close of appellant's evidence, the lower court entered a compulsory non-suit and dismissed the case. In its opinion, the Court of Common Pleas, en banc, ...