Helfrich v. Gurnari

78 Pa. Super. 449 | Pa. Super. Ct. | 1922

Opinion by

Trexler, J.,

The defendant parked his Ford car in the street and entered a saloon in the City of Wilkes-Barre, and after three minutes returned and found the machine had disappeared. Without any one in it, it had proceeded about two hundred feet slightly up grade, across the public square, and had struck the plaintiff, pinning her against the telephone pole and injuring her seriously. There is no evidence as to how the machine started. The appellant says that there is no proof of negligence. It is true there is no positive proof, but there is sufficient to.allow the jury to infer that the accident occurred through the defendant’s carelessness. Whether the defendant overcame this evidence by his proof is a question for the jury. The defendant was the owner and had control of the machine. It was his duty, when he parked it, to see that it was in such a condition that it would remain where it was. In the ordinary course of things such accidents do not happen, if the person controlling the car uses proper care. As stated above, only three minutes elapsed between the defendant leaving the car, and his return and finding it gone. It is possible that within this small space of time someone may have started the car, but the probabilities are all against this theory. When anyone leaves a car and within such a short space of time as here stated, the car is found without a driver, some distance away, the jury can, under the circumstances, be permitted to draw the inference that he did not leave the car in the proper condition and unless he produces evidence which is believed by the jury, that explains the accident, the jury has a right to believe he was negligent. See Heh' v. Consolidated Gas Co., 201 Pa. 443; Rauch v. Smedley, 208 Pa. 175; Yan v. Richmond, 259 Pa. 300. The reasonable possibilities arising out of the facts detailed were to be ascertained by the jury: Shafer v. Lacock et al., 168 Pa. 497; Booth v. Dorsey, 208 Pa. 276; Ryan v. Woodbury Granite Co., 266 Pa. 105; Wiles v. Emerson-Brantingham Co., 267 Pa. 47.

We do not think that the charge contains reversible error. The question left for the jury by the court was couched in the following language, “Now, the question for you to decide is: Did the defendant leave the engine running in his Ford car when he left it there on that day, as he said he did not? Did he shut off the engine, as he said he did? If he shut off the engine, then he is not liable, and the plaintiff cannot recover. But if you do not believe him, and believe that he left the engine running, and the car started itself, was not started by an outsider, then the plaintiff may recover.” This we think, fairly states the case.

The assignments of error are overruled and the judgment is affirmed.