SPENCE, J. I dissent.
In my opinion, the complaint was sufficient to state a cause of action for negligence without reference to the alleged violation of the ordinance, and the trial court therefore erred in granting the motion to exclude any evidence and in granting the motion for nonsuit without taking any evidence.
It was alleged in the complaint that defendant Mary Stanley, at about 5 :30 p. m. on the day of the accident, left her automobile “unattended and unlocked with the ignition key in said car lock” on “Stevenson Street, west of Second Street” in San Francisco; and that “by reason of the carelessness and negligent action of the said defendant, Mary Stanley, in leaving the aforesaid automobile unattended on a public [70]street, unlocked, with the key in said lock . . . the defendant, Robert J. Rawlings was thereby induced to and did, enter said automobile and drove it from its parked place over various streets” in San Francisco “in a careless and negligent manner to the point of impact ...” with plaintiff’s vehicle. It was further alleged that the collision occurred at Army Street and Potrero Avenue in San Francisco at about 5:45 p. m. of said day, and that defendant Rawlings then and there so carelessly and negligently operated said automobile as to cause said collision; and that by reason of “the aforesaid carelessness and negligence of the defendants and each of them” serious injuries were.inflicted upon plaintiff.
The charging allegations of the complaint therefore appear sufficient as against defendant Mary Stanley, unless it may be said as a matter of law that they were insufficient to show a violation by defendant Mary Stanley of a duty of care owing to persons lawfully using the streets, or unless it may be said as a matter of law that, assuming a showing of a violation of a duty of care toward persons lawfully using the streets, they were insufficient to show that such violation was a proximate cause of the injuries to plaintiff. I do not believe that it may be said as a matter of law that 'said allegations were insufficient in either respect. Under these circumstances, the motion to exclude all evidence should have been denied and the motion for nonsuit should not have been entertained until plaintiff had had the opportunity to present his case. Then, if the evidence presented showed a situation upon which reasonable minds could differ upon these issues, the motion for nonsuit should have been denied and the issues should have been presented to the jury under appropriate instructions.
There is a conflict of authority on the general subject under discussion in the various jurisdictions. (See cases collected: Annos. 26 A.L.R. 912; 158 A.L.R. 1374.) Thus, the owner of a negligently parked car has been absolved from liability for damages arising from a thief’s negligent driving of the car into plaintiff’s vehicle, upon the theory that the thief’s act was the proximate cause of the accident and the car owner’s original negligence was too remote to be connected as a cause therewith. (Kiste v. Red Cab, Inc., 122 Ind.App. 587 [106 N.E.2d 395]; Castay v. Katz & Besthoff, Ltd., (La.App.) 148 So. 76; Galbraith v. Levin, 323 Mass. 255 [81 N.E.2d 560]; Anderson v. Theisen, 231 Minn. 369 [43 N.W.2d 272]; Reti v. Vaniska, Inc., 14 N.J. Super. 94 [81 A.2d [71377]]; Wilson v. Harrington, 269 App.Div. 891 [56 N.Y.S.2d 157], aff. 295 N.Y. 667 [65 N.E.2d 101].) In similar circumstances the contrary has been held upon the premise that there may be a plurality of causes cooperating to produce plaintiff’s injuries, each of which is sufficient to permit a jury to impose liability. (Ostergard v. Frisch, 333 Ill.App. 359 [77 N.E.2d 537]; Ney v. Yellow Cab Co., 348 Ill.App. 161 [108 N.E.2d 508] ; Morris v. Bolling, 31 Tenn.App. 577 [218 S.W.2d 754] ; Ross v. Hartman, 78 U.S.App.D.C. 217 [139 F.2d 14, 158 A.L.R. 1370], cert. den. 321 U.S. 790 [64 S.Ct. 790, 88 L.Ed. 1080] ; Schaff v. R. W. Claxton, Inc., 79 U.S.App.D.C. 207 [144 F.2d 532]; R. W. Claxton, Inc. v. Schaff, 83 U.S.App.D.C. 217 [169 F.2d 303].)
In Ross v. Hartman (1943), supra, the owner’s employee violated an ordinance when he left the automobile parked on the street with the key in the ignition switch. Such violation was deemed negligence per se and constituted the proximate cause of the injuries to plaintiff, requiring the owner of the car to respond in damages though the theft of the car and its negligent operation by the thief had intervened. In so holding the court expressly overruled its contrary decision made 27 years previously (Squires v. Brooks, 44 App.D.C. 320), which had held that the intervening act of a third person who steals a car absolves the driver who left the keys in the car from responsibility for a resulting accident. Such decision, the court said at page 14 (139 F.2d), could not be reconciled “with facts which have become clearer and principles which have become better established than they were in 1916.” While in the Ross case the court gave controlling effect to the ordinance as a safety measure designed to prevent children and thieves from tampering with an unlocked vehicle, the court, in passing on the problem, pertinently added at page 15 [139 F.2d] : “Everyone knows now that children and thieves frequently cause harm by tampering with unlocked ears. The danger that they will do so on a particular occasion may be slight or great. In the absence of an ordinance, therefore, leaving a car unlocked might not be negligent in some circumstances, although in other circumstances it might be both negligent and a legal or ‘proximate’ cause of a resulting accident.” (Emphasis added.)
Then in Schaff v. R. W. Claxton, Inc. (1944), supra, 144 F.2d 532, the same court followed its reasoning in the Ross case, though it did not involve a violation of the ordinance through leaving an unlocked car on the street—a “public [72]place.” Rather the driver parked the ear in a restaurant’s “private parking space,” with the key left in the ignition switch. A stranger drove off with the car and injured the plaintiffs. Although there was no applicable ordinance, it was held that it was a question of fact for the jury as to whether the negligence of the original driver, combined with that of the thief, under the circumstances, was the “proximate cause of the accident.” (P. 533 [144 F.2d].) (In accord: R. W. Claxton, Inc. v. Schaff (1948), supra, 169 F.2d 303, cert. den. 335 U.S. 871 [69 S.Ct. 168, 93 L.Ed. 415].)
In Illinois there is a split of authority on the subject. There, as in the District of Columbia, the liability of the owner for damages by reason of the negligent operation of his car by a thief is predicated upon the violation of an ordinance setting up the statutory standard of care to be expected of a reasonably prudent man in parking his car. However, contrary to the rule of the Ross case, in Illinois violation of the ordinance is not deemed negligence per se in fixing the owner’s conduct as the “legal cause” of the harm to plaintiff, but is only prima facie evidence of negligence. (Johnson v. Pendergast, 308 Ill. 255 [139 N.E. 407].) Whether the primary negligence of the owner of the car is the proximate cause of the accident is governed by the customary rule in tort cases. (Ostergard v. Frisch (1948), supra, 77 N.E.2d 537, 541..) Thus in the Ostergard case it was held that the theft and subsequent negligent operation of the car by the thief in the course of flight were reasonably foreseeable risks of leaving a car standing unattended with the key in the ignition switch, which risks must be guarded against at the owner’s peril. Then in Cockrell v. Sullivan (1951), 344 Ill.App. 620 [101 N.E.2d 878], the court specifically repudiated the reasoning of the Ostergard case and held, citing the dissent in that case, that as a matter of law, the thief’s negligent use of the stolen car broke the chain of causation between the primary negligence of the owner of the car and the subsequent accident to plaintiff. However, in Ney v. Yellow Cab Co. (1952), supra, 108 N.E.2d 508, the court reaffirmed the foreseeability rule as applied in the Ostergard case and expressly held that the issue of the car owner’s liability, or more precisely the question of proximate cause, was for the jury’s determination. WFether a reasonable man should have foreseen that leaving his car on the street unattended, with the key in the ignition “would probably result in someone stealing it, and, while in flight, driving it negligently into plaintiff’s automobile” and whether [73]the thief’s “response to the situation created” by the negligent parking of the car was normal or “extraordinary . . . so as to be or not to be the proximate cause of the injury” that followed were questions of which “reasonable men might differ” and so “for the jury.” (108 N.E.2d 511; see also Morris v. Bolling (Tenn.App. 1948), supra, 218 S.W.2d 754, 758.)
The above mentioned split in authority in Illinois has now been resolved since the Supreme Court of Illinois, during the pendency of this appeal, has decided the case of Ney v. Yellow Cab Co., 2 Ill.2d 74 [117 N.E.2d 74], affirming the judgment of the First District Appellate Court in Ney v. Yellow Cab Co., supra, 108 N.E.2d 508.
The precise question here presented has not been decided in this state. However, the subject of intervening acts has been considered, by this court in several recent cases. In Eads v. Marks, 39 Cal.2d 807, this court said at page 812 [249 P.2d 257] : “Where the intervening act is reasonably foreseeable, the chain of causation is not broken, and the original actor remains liable. (Mosley v. Arden Farms Co., 26 Cal.2d 213 [157 P.2d 372, 158 A.L.R. 872]; Osborn v. City of Whittier, 103 Cal.App.2d 609 [230 P.2d 132].)”
In McEvoy v. American Pool Corp., 32 Cal.2d 295, 298-299 [195 P.2d 783], the following rules from the Restatement of Torts with respect to proximate causation were cited with approval. Section 447: “The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if (a) the actor at the time of his negligent conduct should have realized that a third person might so act.” Section 449: “If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which make the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.” Section 453, comment (a): “If the facts are undisputed, it is usually the duty of the court to apply to them any rule which determines the existence or extent of the negligent actor’s liability. If, however, the negligent character of the third person’s intervening act or the reasonable foreseeability of its being done is a factor in determining whether the intervening act relieves the actor from liability for his antecedent negligence, and under the [74]undisputed facts there is room for reasonable difference of opinion as to whether such act was negligent or foreseeable, the question should be left to the jury.” (Emphasis added.)
In the McEvoy case, Jack McEvoy was employed by the defendant corporation as a service man. In making his weekly calls for the servicing of swimming pools, he used his own car, being paid for its use by the company. His work required that he carry in his ear “highly dangerous” chemicals as part of the service equipment. One night while off duty his car was struck by a hit-and-run driver and overturned, the impact causing certain glass jars to break, with the result that the chemicals therein burned his mother, who was riding with him. A nonsuit was granted in her action against the company. In reversing the judgment, this court said at page 299: “In the light of the foregoing [the above Restatement rules] we cannot say, as a matter of law, that defendants are relieved from liability for negligence by the intervening conduct of their employee or the hit-and-run driver . . . the jury could have found that defendants owed a duty to persons in plaintiff’s situation, and they cannot escape responsibility for their failure to perform that duty merely because of intervening acts the likelihood of which they reasonable should have foreseen. In regard to Jack’s conduct in leaving the chemicals in the car, there was evidence that defendants failed to give his adequate notice of the extremely dangerous character of the liquids and that he was unaware that they were dangerous. The jury could have found that defendants had knowledge that their employees did not remove the glass jars from their cars at night before driving for pleasure and that defendant should have foreseen the likelihood of such conduct on the part of Jack on the night of the accident. As for the intervening negligence of the unknown driver, the jury could have found, in view of the frequency of automobile accidents, that defendants should have foreseen that a third person might cause the type of accident which occurred.”
The principles of the McEvoy case on the questions of intervening negligence and causation were followed in Benton v. Sloss, 38 Cal.2d 399 [240 P.2d 575], There Sloss, a used car dealer, during sale negotiations with a 19-year-old boy, Jay Fetters, allowed him to drive an' old defective automobile over a weekend. Sloss knew that Jay had no driver’s license. While driving in the country that Sunday afternoon with some other young people, Jay, in an attempt to [75]avoid colliding with another vehicle, ran his car off the highway and skidded into a telephone pole, causing injuries to plaintiffs, who were riding as guests in Jay’s ear. In affirming a judgment in plaintiffs’ favor against Sloss, this court said at page 405: “Jay’s negligent driving was unquestionably a cause of plaintiffs’ injuries. Sloss’ negligence was also a cause of those injuries, if it was a substantial factor in bringing them, about. (McEvoy v. American Pool Corp., 32 Cal.2d 295, 298 [195 P.2d 783]; Rest., Torts, §431.) This question of fact the trial court resolved in plaintiffs’ favor. . . . The negligent conduct of Jay did not relieve Sloss from liability, for the likelihood of negligent operation of the vehicle was one of the hazards that Sloss could reasonably foresee. (Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 220 [157 P.2d 372, 158 A.L.R. 872] ; McEvoy v. American Pool Corp., supra, 32 Cal.2d 295, 298; Lacy v. Pacific Gas & Elec. Co., 220 Cal. 97 [29 P.2d 781]; Opple v. Ray, 208 Ind. 450, 456 [195 N.E. 81]; see Rest., Torts, § 447.) ”
In the light of the foregoing principles, plaintiff properly maintains that whether the leaving of the key in the ignition switch of the Stanleys’ unlocked ear parked on a downtown street was negligence, and if so, whether it was a proximate cause of plaintiff’s injuries were questions on which reasonable minds might differ, and so were for the jury’s determination. The fact that Rawlings’ negligent operation of the car was itself a proximate cause and was preceded by his criminal act of theft was not determinative under the circumstances. (Ross v. Hartman, supra, 139 F.2d 14, 16.) The accident here happened within approximately three miles from the place where the Stanleys’ unlocked car was parked and about fifteen minutes after the negligent parking. The leaving of keys in an unlocked ear on a public street in a city’s populous district might reasonably be regarded as almost an invitation to a thief to take it, and its subsequent negligent operation by the thief in the course of flight might reasonably be held a foreseeable risk which the owner of the car assumed in consequene of his negligent act. (Rest., Torts, §§ 448, 449.) Any language in the cases of Hale v. Pacific Tel. & Tel. Co., 42 Cal.App. 55, 59 [183 P. 280], and Frace v. Long Beach City High Sch. Dist., 58 Cal.App.2d 566, 572 [137 P.2d 60], indicating a contrary view should be disapproved. (See “Proximate Cause in California” by William L. Prosser, 38 Cal.L.Rev. 369, 372.)
[76]The general rule of tort liability is applicable in this case: that if an injury occurs from two causes, both due to the negligence of different persons, but together constituting an efficient cause, all persons whose acts contribute to the injury are liable therefor, and the negligence of one does not excuse the negligence of the other. (38 Am.Jur. § 70, p. 726; Morris v. Bolling (Tenn.App.), supra, 218 S.W.2d 754, 758.) Having created the risk by the negligent parking of his car, the owner may fairly be held responsible for the harm caused thereby rather than be absolved, as a matter of law, from all liability to the innocent victim of his original wrongdoing. (Ross v. Hartman, supra, 139 F.2d 14, 16.) Such conclusion accords with the general rule that ordinarily the “issue of proximate cause is essentially one of fact” (Mosley v. Arden Farms Co., supra, 26 Cal.2d 213, 219) and follows the sound reasoning of Ross v. Hartman, supra, 139 F.2d 14, cert. den. 321 U.S. 790; Schaff v. R. W. Claxton, Inc., supra, 144 F.2d 532; Ney v. Yellow Cab Co., supra, 117 N.E.2d 74; and other like eases above cited wherein the question here presented has been adjudicated.
It is significant to note that the majority opinion apparently concedes that an owner may be held liable under some circumstances for the negligent driving of the automobile by a thief resulting from the negligent leaving of an unlocked ear upon the street. It mentions the situation where an unlocked car is left in front of a school (Rest., Torts, § 302, illus. 7) and the situation where a car is left unlocked with an intoxicated passenger therein. (Morris v. Bolling (Tenn. App.), supra, 218 S.W.2d 754.) But if any of these situations presents a question of fact for the jury, it would seem to follow that a similar question of fact is presented where the car is left unlocked on a public street during rush hours in the business district of a populous city. In any event, the result of the trial court’s rulings here was to prevent the amendment of the complaint or the introduction of any evidence to show the circumstances. It therefore appears that even under the theory of the majority, the challenged judgment cannot be affirmed.
I would reverse the judgment.
Carter, J., concurred.
Appellant’s petition for a rehearing was denied July 7, 1954. Carter, J., and Spence, J., were of the opinion that the petition should be granted.