¶1dissenting.
¶2I respectfully dissent from the majority opinion and would affirm the judgment. The effect of the majority holding is to find the defendant guilty of negligence as a matter of law, when, under the evidence in this record, the question of defendant’s negligence was for the jury to determine.
¶3I have no quarrel with the rule of Miles v. International Hotel Co., 289 Ill 320, 124 NE 599, upon which the majority relies. I refer the court to a second rule, also enunciated in Miles, that the bailee is required to exercise such care and diligence in the preservation of the property entrusted to him as a prudent man takes of his own property of like character.
¶4The Supreme Court in Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74, at page 84, said: “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 proximate cause, the fact that fair-minded men might reach different conclusions, emphasize the appropriateness and necessity of leaving such questions to a fact-finding body. The jury is the tribunal under our legal system to decide that type of issue. To withdraw such questions from the jury is to usurp its function.”
¶5Applying the rule set forth in Ney, I cannot agree that the defendant was negligent as a matter of law. It was properly a jury question, and in the absence of error in rulings on evidence or instructing the jury, I would affirm the judgment of the Circuit Court.