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Ney v. Yellow Cab Co.





APPEAL from the Third Division of the Appellate Court for the First District; — heard in that court on appeal from the Municipal Court of Chicago; the Hon. RAYMOND P. DRYMALSKI, Judge, presiding.


The First District Appellate Court has granted this appeal on the ground of importance. The precise question here presented has never been passed upon by this court and there appears to be a conflict of opinion in the Appellate courts of this State.

The Appellate Court here affirmed the trial court's judgment fixing liability on the defendant for violation of a section of the Uniform Traffic Act. The plaintiff charged that defendant, by its servant, negligently permitted its taxicab to remain unattended on a Chicago street without first stopping the engine or locking the ignition or removing the key, contrary to a section of said act. The undisputed facts reveal that a thief stole the taxicab and while in flight ran into plaintiff's vehicle causing property damage. Defendant's motion to dismiss the complaint was based on the theory that the acts or omissions of the defendant did not constitute actionable negligence, nor the proximate cause of the damage. Briefly stated, plaintiff contended that the defendant's violation of the statute was negligence and the proximate cause of the damage.

The statute in question, section 92 of article XIV of the Uniform Traffic Act, provides: "(a) No person driving or in charge of a motor vehicle shall permit it to stand unattended without first stopping the engine, locking the ignition and removing the key, or when standing upon any perceptible grade without effectively setting the brake thereon and turning the front wheels to the curb or side of the highway. (b) No person shall operate or drive a motor vehicle who is under fifteen years of age." Ill. Rev. Stat. 1953, chap. 95 1/2, par. 189; Jones Ann. Stat. 85.221.

The defendant takes the position that this particular statute is not an antitheft measure but is a traffic regulation, the violation of which could impose no liability on the owner or operator of the vehicle for the misconduct of a thief, for the reason that, under such circumstances, the violation of the statute is not actionable negligence in that the misconduct is neither negligence with relation to the resulting injury, nor its proximate cause. The plaintiff, on the other hand, contends that the statute is a safety measure for the benefit of the public; that its violation is prima facie evidence of negligence; and that reasonable persons might reasonably foresee that its violation could result in the consequences which occurred here. The plaintiff further contends that irrespective of the statute there would be a common-law liability under the same circumstances, and that in either event the questions of negligence and proximate cause are, under the facts alleged and admitted here, questions of fact and not questions of law.

The First District Appellate Court in Ostergood v. Frisch, 333 Ill. App. 359, held, with one Justice dissenting, that there was a liability under similar circumstances. The Third District Appellate Court in Cockrell v. Sullivan, 344 Ill. App. 620, held there was no liability. Thereafter, in the present case, Ney v. Yellow Cab Co., 348 Ill. App. 161, the First District court again held that liability existed.

A repetitious review of the cases and decisions of the foreign jurisdictions cited in the parties' briefs will serve no good purpose, as our Appellate Courts have already done so in a most scholarly manner. Suffice it to say here that the majority rule seems to hold there is no liability while the minority rule holds there is. Various distinctions, qualifications and limitations have been pointed out by both plaintiff and defendant in criticism of the cited cases. We have carefully studied the reasoning of our Appellate courts and the courts of the other jurisdictions, in the light of these distinctions, and conclude that the issue presented requires our determination of the following questions: (a) What was the legislative intention? (b) Is the violation of the statute the proximate cause of the injury? (c) Is the act of the thief an intervening, independent, efficient force which breaks the causal connection between the original wrong and the injury?

Labeling of the statute does not solve the problem. Defendant urges that the statute is a traffic regulation and not an antitheft measure, and from this premise reasons to a conclusion of non-liability. It seems to argue that if it were an antitheft measure liability would attach in this case. However, the Massachusetts court construed this type of provision as being an antitheft measure but found the injury to the plaintiff not within the harm intended to be prevented. (Sullivan v. Griffin, 318 Mass. 359, 61 N.E.2d 330; 35 Minnesota Law Review 81.) There is other punitive legislation in this State aimed at crime prevention and we doubt that it could earnestly be contended that this provision is, solely, another such measure. We think the key to the construction of the statute with regard to the legislative intention appears in the statute itself. The requirement that the brakes be set and the wheels turned to the curb on a grade is no material theft deterrent. The second subparagraph of the section prohibiting persons under fifteen years of age from operating a motor vehicle indicates to us that the legislature was thinking about the danger to the public in permitting persons lacking in experence, judgment, knowledge and maturity to operate such vehicles. We cannot but conclude that this entire section is a public safety measure. This being so, what harm did the legislature foresee and attempt to prevent by prohibiting the leaving of an unattended motor vehicle with the key in the ignition? The motor vehicle with the key in its ignition in itself could obviously do no harm.

Consequently, there enters into our consideration the question of foreseeability as to intervention of outside agencies not under the control of the person in charge of the motor vehicle. The drawing of lines of demarcation in problems of cause and effect is often difficult in the study of formal logic and these difficulties are not minimized in the field of jurisprudence. We cannot say that the legislature intended to distinguish between certain types of outside agencies without expressing such distinction. Such a distinction would be too tenuous a ground to serve as a basis for decision in view of the broad general sweep of the statutory language employed. The legislature has here used clear and express terms making it the duty of persons in charge of motor vehicles to do certain acts upon leaving their vehicles unattended. The motivation of such legislation is not the State's desire to punish but rather its interest in public welfare for protection of life, limb and property by prevention of recognized hazards.

The violation of the statute is prima facie evidence of negligence under the prevailing rule of this State. (Johnson v. Pendergast, 308 Ill. 255; Stewart v. United States, 186 Fed.2d 627.) This in itself creates no liability. The injury must have a direct and proximate connection with the violation of the statute before liability will be held to exist. It is the existence of this cause and effect relationship which makes the negligence of the defendant actionable.

Where an independent agency intervenes, the solution of the problem becomes aggravated. The rules are without substantial contradiction and are universally applicable, but their practical application yields varying and contradictory results. In Neering v. Illinois Central Railroad Co. 383 Ill. 366, we stated: "What constitutes proximate cause has been defined in numerous decisions, and there is practically no difference of opinion as to what the rule is. The injury must be the natural and probable result of the negligent act or omission and be of such a character as an ordinarily prudent person ought to have foreseen as likely to occur as a result of the negligence, although it is not essential that the person charged with negligence should have foreseen the precise injury which resulted from his act." In Johnston v. City of East Moline, 405 Ill. 460, we declared: "An intervening and efficient cause is a new and independent force which breaks the causal connection between the original wrong and the injury and itself becomes the direct and immediate cause of the injury. [Citations.] The intervention of independent concurrent or intervening forces will not break causal connection if the intervention of such forces was, itself, probable or foreseeable. [Citations.]"

A further problem is presented when the independent agency is an illegal or criminal act. Wrongful acts of independent third persons, not actually intended by the defendant, are not regarded by the law as natural consequences of his wrong, and he is not bound to anticipate the general probability of such acts, anymore than a particular act by this or that individual. The rule applies a fortiori to criminal acts. The intervention of a criminal act, however, does not necessarily interrupt the relation of cause and effect between negligence and an injury. If at the time of the negligence, the criminal act might reasonably have been foreseen, the causal chain is not broken by the intervention of such act. 38 Am. Jur. 728-9.

The doctrine of proximate cause was subjected to a thorough study and analysis in the case of Palsgraf v. Long Island Railroad Co. 248 N.Y. 339, 162 N.E. 99. Plaintiff's injury there was sustained when defendant's guards attempted to assist a passenger hurriedly boarding one of its trains and dislodged a package he was carrying. The package contained fireworks which exploded upon falling, causing a scale several feet away, but near plaintiff, to fall upon her. The guards had no knowledge of the contents of the package. A divided court, with three justices dissenting, held there was no liability. Justice Cardozo's majority opinion is based upon the doctrine of relative rights, declaring that although the defendant may be negligent as to one person he still might not be negligent as to another. That a person might suffer injury would not make the negligence of the defendant actionable. That doctrine is one of comparative degree and has general judicial acceptance. If the guards in the Palsgraf case had known the package contained explosives, then their negligence would have been found to be actionable under the majority view.

The law of probable cause holds that an injury which is the natural and probable consequence of an act of negligence is actionable and such an act is the proximate cause of the injury. The injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable, and such an act is either a remote cause, or no cause whatever of the injury. An injury that results from an act of negligence but that could not have been foreseen or reasonably anticipated as its probable consequence and that would not have resulted from it had not the interposition of some new and independent cause interrupted the natural sequence of events, turned aside their course, and produced it, is not actionable. (59 A.L.R. 1264.) Justice Andrews, in his dissent in the Palsgraf case, poses some interesting hypothetical examples which point up the practical difficulties confronting the application of cause-and-effect laws in injury cases. Justice Cardozo profoundly there stated: "Life will have to be made over and human nature transformed before prevision so extravagant can be accepted as the norm of conduct, the customary standard to which behavior must conform. * * * The range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury." Since the decision in the Palsgraf case in 1928, the course of events in the world has done a great deal to make life over. What might have been regarded as fanciful, imaginary and conjectural a quarter of a century ago are today matters of common ...

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