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Childers v. Franklin

FEBRUARY 29, 1964.

EDDIE CHILDERS, HARRY MAYABB, ET AL., PLAINTIFFS-APPELLANTS,

v.

JOHN D. FRANKLIN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Franklin County; the Hon. ROY O. GULLEY, Judge, presiding. Judgment affirmed.

DOVE, P.J.

The plaintiffs brought this action seeking to recover personal and property damages which they sustained when the automobile of the defendant collided with an automobile and also with a pickup truck, in which the plaintiffs were riding. At the time of the collision, two of the plaintiffs were occupants of the automobile and two of the plaintiffs were occupants of the truck.

By stipulation of the parties, a jury was waived and the issue submitted to the court for determination was confined to the question of the liability of the defendant. The court found in favor of the defendant, and from an appropriate judgment in his favor, the plaintiffs appeal.

The record discloses that on the evening of October 30, 1958, defendant drove his Cadillac Sedan automobile to the Benton Junior High School in Benton. Arriving at the school he parked his car on a private parking lot provided by said school for its patrons, turned off the motor, left the car unlocked and the key in the ignition, and proceeded to the basketball field where his son was participating in a game that evening.

Upon his return to the place where he had parked his car, he found it was gone, and later learned that it had been stolen by James Hammond, Billy Hammond, and Robert Thorpe. These three thieves left Benton in their stolen car and after they had proceeded some distance toward West Frankfort, on their way to New Orleans, the stolen car, belonging to defendant, and being driven by one of the thieves, collided with the automobile and truck belonging to the plaintiffs, resulting in injuries to their person and property, for which a recovery is sought in this action.

It is the contention of counsel for appellants that appellee violated the Uniform Act Regulating Traffic on Highways, and that the violation thereof constituted negligence which was the proximate cause of the collision. It is also contended that irrespective of the statute, the act of the appellee in parking his car where he did, unlocked and with the key in the ignition, constituted negligence at common law, which was the proximate cause of the collision.

It is the contention of counsel for defendant that defendant's car was not parked on a street or highway at the time it was stolen, and therefore, the statute relied upon had no application. It is also insisted that there could be no common law liability because defendants' negligence, if any, was not the proximate cause of plaintiffs' injuries and damages.

The Uniform Act Regulating Traffic On Highways provides:

"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 first effectively setting the brake thereon and turning the wheels to the curb or side of the highway." (Ill Rev Stats, c 95 1/2, § 189, par 92, Art XIV.)

The trial court found that this section of the Traffic Code had no application to the factual situation as disclosed by the evidence, and also found that the negligence, if any, of John D. Franklin in parking his said automobile unlocked and without removing the key from the ignition, was not the proximate cause of the collision between defendant's car and plaintiffs' motor vehicles.

The complaint alleged that defendant, on the evening in question, parked his car and "permitted it to remain unattended on Webster or Church Street in the City of Benton, or in the alternative, on a public school ground adjacent to said streets." With certain enumerated exceptions, the Uniform Act Regulating Traffic On Highways states that "the provisions of this Act relating to the operation of vehicles refer exclusively to the operation of vehicles upon highways." (Ill Rev Stats c 95 1/2, § 117, par 20, Art II.)

The place where this car was parked on the evening it was stolen was not within any of the exceptions, and was not parked on a public highway. The trial court so found and correctly held that the statutory prohibition against permitting a motor vehicle to stand unattended, without locking the ignition and removing the key, was not applicable.

Counsel for appellants further insist that even though this court sustains the finding of the trial court, that defendant's car, on the night it was stolen, was parked on the Benton Junior High School parking lot, still, under the common law, defendant, in leaving his car at such a place, unattended and unlocked, with the starter key in the ignition, was "guilty of negligence which was the proximate cause or, at least, a contributing factor, to causing the injuries sustained by the plaintiffs." Counsel argue that car thievery is on the upgrade; that this parking lot was not guarded or watched by anyone; that defendant violated every precaution which an ordinarily prudent car operator takes in parking his car in a public place, and that in so doing, he did not act as a reasonably prudent person would act under similar circumstances. In support of this argument, Counsel cite Ney v. Yellow Cab Co., 2 Ill.2d 74, 117 N.E.2d 74, 51 ALR2d 624; Stanko v. Zilien, 33 Ill. App.2d 364, 179 N.E.2d 436; Ostergard v. Frisch, 333 Ill. App. 359, 77 N.E.2d 537, and 65 CJS Negligence, § 111.

In the Ney case the Supreme Court affirmed the judgment of the Appellate Court, which affirmed the judgment of the Municipal Court of Chicago in favor of the plaintiff, where it appeared that a thief stole a taxicab of the defendant, and while in flight, ran into plaintiff's vehicle, causing property damage. The taxicab had been left, by its operator, unattended on a Chicago street without first stopping the engine or locking the ignition or removing the key, contrary to the aforesaid provisions of the Uniform Traffic Act. The Supreme Court held that this provision of the Traffic Act was a public safety measure, and the violation of the statute is prima facie evidence of negligence and concluded (p 84): "Questions of negligence, due care and proximate cause are ordinarily questions of fact for a jury to decide. The right of trial by jury is recognized in the Magna Charta, our Declaration of Independence, and both our State and Federal Constitutions. It is a fundamental right in our democratic judicial system. Questions which are composed of such qualities sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. The debatable quality of issues, such as negligence and ...


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