Martin v. Herzog

• Decision Date: 24 February 1920
• Citation: 228 N.Y. 164,126 N.E. 814
• Parties: MARTIN v. HERZOG et al.
• Court: New York Court of Appeals Court of Appeals

228 N.Y. 164

126 N.E. 814

MARTIN

v.HERZOG et al.

Court of Appeals of New York.

Feb. 24, 1920.

Action by Elizabeth Martin, as administratrix of William J. Martin, deceased, against Samuel A. Herzog and another. Judgment for the plaintiff against the named defendant was reversed by the Appellate Division (176 App. Div. 614,163 N. Y. Supp. 189), and plaintiff appeals.

Judgment of Appellate Division affirmed, and judgment absolute directed on stipulation in favor of defendant.

Hogan, J., dissenting.

Appeal from Supreme Court, Appellate Division, Second department.

Hugh A. Thornton, of Tarrytown, for appellant.

Herbert C. Smyth, of New York City, for respondent.

CARDOZO, J.

The action is one to recover damages for injuries resulting in death. Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant's automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve, when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway. Highway Law, § 286, subd. 3, and section 332 (Consol. Laws, c. 25). Negligence is charged against the plaintiff's intestate, the driver of the wagon, in that he was traveling without lights. Highway Law, § 329a, as amended by Laws 1915, c. 367. There is no evidence that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and, looking in the direction of the plaintiff's approach, he was peering into the shadow. The case against him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.

[1] We agree with the Appellate Division that the charge to the jury was erroneous and misleading. The case was tried on the assumption that the hour had arrived when lights were due. It was argued on the same assumption in this court. In such circumstances, it is not important whether the hour might have been made a question for the jury. Todd v. Nelson, 109 N. Y. 316, 325,16 N. E. 360. A controversy put out of the case by the parties is not to be put into it by us. We say this by way of preface to our review of the contested rulings. In the body of the charge the trial judge said that the jury could consider the absence of light ‘in determining whether the plaintiff's intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration.’ The defendant requested a ruling that the absence of a light on the plaintiff's vehicle was ‘prima facie evidence of contributory negligence.’ This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. The plaintiff then requested a charge that ‘the fact that the plaintiff's intestate was driving without a light is not negligence in itself,’ and to this the court acceded. The defendant saved his rights by appropriate exceptions.

We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway. Highway Law, § 329a. By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state. Amberg v. Kinley, 214 N. Y. 531, 108 N. E. 830, L. R. A. 1915E, 519;Karpeles v. Heine, 227 N. Y. 74, 124 N. E. 101; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Dec. 458; Cordell v. N. Y. C. & H. R. R. Co., 64 N. Y. 535, 538;Marino v. Lehmaier, 173 N. Y. 530, 536,66 N. E. 572,61 L. R. A. 811; cf. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 40, 36 Sup. Ct. 482, 60 L. Ed. 874;Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 600, 601,106 N. E. 355;Newcomb v. Boston Protective Dept., 146 Mass. 596, 16 N. E. 555,4 Am. St. Rep. 354;Bourne v. Whitman, 209 Mass. 155, 163, 95 N. E. 404,35 L. R. A. (N. S.) 701. Whether the omission of an absolute duty, not willfully or heedlessly, but through unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into which we need not enter, for it does not touch the case before us. There may be times, when, if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must be kept distinct in speech and thought. Pollock, Torts (10th Ed.) p. 458; Clark & Linseil, Torts (6th Ed.) p. 493; Salmond, Jurisprudence (5th Ed.) pp. 351, 363; Texas & Pac. Ry. Co. v. Right, supra, 241 U. S. 43, 36 Sup. Ct. 482, 60 L. Ed. 874;Chicago, cago, B. & Q. Ry. Co. v. U. S., 220 U. S. 559, 31 Sup. Ct. 612, 55 L. Ed. 582.

In the conditions here present they come together and coalesce. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed. Amberg v. Kinley, supra; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 283, 14 Sup. Ct. 619, 38 L. Ed. 434;Kelley v. N. Y. State Rys., 207 N. Y. 342, 100 N. E. 1115; Ward v. Hobbs, 4 App. Cas. 13. Some relaxation there has also been where the safeguard is prescribed by local ordinance, and not by statute. Massoth v. D. & H. C. Co., 64 N. Y. 524, 532;Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488. Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance, however, like a statute, is a law within its sphere of operation, and so the distinction has not escaped criticism. Jetter v. N. Y. & H. R. R. Co., supra; Knupfle v. Knickerbocker Ice Co., supra; Newcomb v. Boston Protective Dept., supra; Prest-O-Lite Co. v. Skeel, supra. Whether it has become too deeply rooted to be abandoned, even if it be thought illogical, is a question not now before us. What concerns us at this time is that, even in the ordinance cases, the omission of a safeguard prescribed by statute is put upon a different plane, and is held not merely some evidence of negligence, but negligence in itself. Massoth v. D. & H. Canal Co., supra. Cf. Cordell v. N. Y. C. & H. R. R. R. Co., supra.

In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to ‘consider the default as lightly or gravely’ as they would (Thomas, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman. Scott v. International Paper Co., 204 N. Y. 49, 97 N. E. 413;Fitzwater v. Warren, 206 N. Y. 49, 97 N. 99 N. E. 1042,42 L. R. A. (N. S.) 1229;Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33, 36 Sup. Ct. 482, 60 L. Ed. 874. Jurors have no dispensing power, by which they may relax the duty that one traveler on the highway owes under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and, being wholly unexcused, was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.

[3] We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault, unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right to damages, unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. ‘Proof of negligence in the air, so to speak, will not do.’ Pollock Torts (10th Ed.) p. 472.

[4] We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals. Lambert v. Staten Island R. R. Co., 70 N. Y. 104, 109, 110;Walsh v. Boston R. R. Co., 171 Mass. 52, 58, 50 N. E. 453. The Pennsylvania, 19 Wall. 125, 136, 137, 22 L. Ed. 148;Fisher v. Village of Cambridge, 133 N. Y. 527, 532,30 N. E. 663. If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result.

[5] There may, indeed, be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene...