# Ney v. Yellow Cab Co.

> Illinois Supreme Court · January 20, 1954 · 2 Ill. 2d 74

URL: https://www.frixlaw.com/law-library/cases/9710723

## Case

- **Full name:** Helen C. Ney, Appellee, vs. Yellow Cab Company, Appellant
- **Court:** Illinois Supreme Court
- **Decided:** January 20, 1954
- **Citations:** 2 Ill. 2d 74; 117 N.E.2d 74; 51 A.L.R. 2d 624; 1954 Ill. LEXIS 307
- **Precedential status:** Published
- **Opinion:** Dissent by Hershey
- **Judges:** Maxwell, Hershey
- **Cited by:** 317 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9710723

## How later opinions describe it (automated extraction)

- holding that violation of a similar parking ordinance established prima facie negligence on the part of the vehicle owner
- holding criminal acts foreseeable based on the defendant's creation of a condition that facilitates the crime

## Opinion text

Mr. Justice Hershey, dissenting:
"• The majority opinion is contradictory within itself. It first concludes that section 92 of article XIV of the Uniform Traffic Act (Ill. Rev. Stat. 1953, chap. 95^, par. 189,) is not an antitheft statute, but is, in fact, a public safety measure. Although the opinion fails to answer in specific fashion its question as to what harm the legislature foresaw and attempted to prevent by the passage of this act, it does ultimately determine that the statute was to prevent accidents caused by a thief in stealing the vehicle. This determination is manifest by the majority’s adoption of the Appellate Court determination. The majority thus finds the statute, or at least that part of the statute rendering it unlawful to fail to remove the keys from a parked vehicle, to be an antitheft measure.
The complaint filed by appellee alleged that the thief “obtained possession of the said taxicab or motor vehicle of the Defendant aforesaid, and in an attempt to steal the same and in making his escape after the said theft, ■ ran the said taxicab or motor vehicle against the automobile of the Plaintiff.” Appellant moved to strike and dismiss the complaint and stood by his motion. It is entirely impossible to determine from the record how far from the theft scene or how soon after the theft the accident occurred. It is entirely without the bounds of reason to impose liability upon the cab company for an accident occurring at a great distance or a considerable time after the actual theft, or at a time when the thief was no longer in actual flight from the place of his crime."
The majority concludes that all parts of this statute, except that portion referring to the keys, indicate an intention on the part of the legislature to prevent harm to the public by an inadvertent or negligent movement of a parked vehicle, or through its being driven by a young person devoid of experience, judgment, knowledge, or maturity. It finds that the legislature’s purpose in relation to those portions of the statute was not to deter theft. However, the majority then concludes that the portion directing the removal of the keys from the vehicle was to prevent the operation of the vehicle and possible public harm by a thief in flight. The slightest experience renders everyone cognizant of the fact that the removal of automobile ignition keys is only a minor deterrent, if any, to the theft of an automobile and a subsequent flight from detection and pursuit. Consequently, it is only reasonable and logical to construe the legislature’s intention in the passage of this portion of the statute in the same light as is attributed to the remainder of the section. One can only conclude, therefore, that the legislature required the removal of the key to prevent a mere negligent or inadvertent starting of the automobile and an ensuing uncontrolled movement thereof. Obviously the legislature could not presume by such legislation to prevent a wilful movement of the vehicle by an unauthorized person. It is generally recognized that one may leave a motor vehicle standing unattended in a public street temporarily, without being guilty of negligence, provided he takes the ordinary precautions of securing it by the appliances with which it is equipped for that purpose, and that if it is thereafter set in motion by the wilful or negligent act of a third person, such wilful or negligent act will be deemed the proximate cause of the accident or injury resulting therefrom and the owner will not be liable. ( 26 A.L.R. 912 .) The majority opinion adopts the minority approach, which is both strained and artificial and which has been overruled in most of those jurisdictions which once adopted it. Galbraith v. Levin, 323 Mass. 255 ; Maggiore v. Laundry, (La.) 150 So. 394 ; Anderson v. Theisen, 231 Minn. 369 .
It is correctly stated by the majority that the entire statute makes the failure to remove the key prima facie evidence of negligence. However, such prima facie evidence of negligence is not absolute negligence, and does not of itself create liability. It creates liability only where such negligence is the proximate cause of the injury. It cannot be the proximate cause of the injury where an independent agency intervenes.
This section, not being an antitheft measure, and not making the failure to remove the key an absolute act of negligence, cannot constitute the proximate cause of this injury. But for the intervention of the theft the failure to remove the key could not have caused this injury. Moreover, unless the thief was in immediate flight from the scene of his theft, the act of thievery could not even be a factor contributing to the injury. In the latter case the failure to remove the key could not have the slightest connection with the subsequent accident and injury.
It is, therefore, impossible under the facts as evidenced by the record, and under the dictates of this statute, to impose liability upon the defendant cab company. The Appellate Court judgment should be reversed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9710723. Public record. Not legal advice.