Aiken v. Holyoke St. Ry. Co.

• Decision Date: 21 October 1903
• Citation: 68 N.E. 238,184 Mass. 269
• Parties: AIKEN v. HOLYOKE ST. RY. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 269

68 N.E. 238

AIKEN v. HOLYOKE ST. RY. CO.

Supreme Judicial Court of Massachusetts, Hampden.

October 21, 1903

COUNSEL

A. L. Green and F. F. Bennett, for plaintiff.

Brooks & Hamilton, for defendant.

OPINION

KNOWLTON C.J.

The most important question in this case grows out of the instructions to the jury upon the third count. This count charges the defendant, by its servants, with having started up the car recklessly, wantonly, and with gross disregard of the plaintiff's safety, while he was in a place of great peril upon the step of the car, and with having thrown him upon the ground and under the wheels of the car. There was evidence tending to show that the plaintiff, a boy 6 1/2 years of age, ran near or against the car, and was upon the lower step at the forward end as the car was going around a curve from one street into another, and was clinging to the step, trying to get into a stable position, and that he there cried out to the motorman, 'Let me off!' that the motorman saw and heard him, and knew that he was in a place of danger, and that he then turned on the power in a wanton and reckless way, with a view to start the car quickly; and that the plaintiff was thus thrown off and injured. This testimony was contradicted, but it was proper for the consideration of the jury. The judge instructed the jury that, if they found the facts to be in accordance with this contention of the plaintiff, they would be warranted in finding that the conduct of the motorman was wanton and reckless and in returning a verdict for the plaintiff. He also instructed them that, to maintain the action on this ground, it must be proved that the motorman willfully and intentionally turned on the power with a view to making the car start forward rapidly and go at full speed quickly, but that it was not necessary to prove that he did this with the intention of throwing the boy off and injuring him. He also told them that, to warrant a recovery upon this state of facts, the plaintiff need not show that he was in the exercise of due care. The defendant excepted to that part of the instruction which relates to due care on the part of the plaintiff.

The defendant contends that, while it was not necessary for the plaintiff to show due care anterior to the act of the motorman, he was bound to show due care which was concurrent with this act and immediately subsequent to it. This brings us to a consideration of the rules and principles applicable to this kind of liability. It is familiar law that, in the absence of a statutory provision, mere negligence, whatever its degree, if it does not include culpability different in kind from that of ordinary negligence, does not create a liability in favor of one injured by it, if his own negligence contributes to his injury. It is equally true that one who willfully and wantonly, in reckless disregard of the rights of others, by a positive act or careless omission exposes another to death or grave bodily injury, is liable for the consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. The difference in rules applicable to the two classes of cases results from the difference in the nature of the conduct of the wrongdoers in the two kinds of cases. In the first case the wrongdoer is guilty of nothing worse than carelessness. In the last he is guilty of a willful, intentional wrong. His conduct is criminal or quasi criminal. If it results in the death of the injured person he is guilty of manslaughter. Commonwealth v Pierce, 138 Mass. 165, 52 Am. Rep. 264; Commonwealth v. Hartwell, 128 Mass. 415, 35 Am. Rep. 391. The law is regardful of human life and personal safety, and, if one is grossly and wantonly reckless in exposing others to danger it holds him to have intended the natural consequences of his act, and treats him as guilty of a willful and intentional wrong. It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the willful, intentional act, the law imputes to the offender, and in this way a charge which otherwise would be mere negligence becomes, by reason of a reckless disregard of probable consequences, a willful wrong. That this constructive intention to do an injury in such cases will be imputed in the absence of an actual intent to harm a particular person is recognized as an elementary principle in criminal law. It is also recognized in civil actions for recklessly and wantonly injuring others by carelessness. Palmer v. Chicago St. L. & P. Railroad Company, 112 Ind. 250, 14 N.E. 70; Shumacher v. St. Louis & Santa Fé Railroad Company (C. C.) 39 F. 174; Brannen v. Kekomo,G. & J. Gravel Road Company, 115 Ind. 115, 17 N.E. 202, 7 Am. St. Rep. 411. In an action to recover damages for an assault and battery it would be illogical and absurd to allow as a defense proof that the plaintiff did not use proper care to avert the blow. See Sanford v. Eighth Avenue Railroad Company, 23 N.Y. 343-346, 80 Am. Dec. 286. It would be hardly less so to allow a similar defense where a different kind of injury was wantonly and recklessly inflicted. A reason for the rule is the fact that, if a willful, intentional wrong is shown to be the direct and proximate cause of an injury, it is hardly conceivable that any lack of care on the part of the injured person could so concur with the wrong as also to be a direct and proximate contributing cause to the injury. It might be a condition without which the injury could not be inflicted. See Newcomb v. Boston Protective Department, 146 Mass. 596, 16 N.E. 555, 4 Am. St. Rep. 354. It might be a remote cause, but it hardly could be a cause acting directly and proximately with the intentional wrongful act of the offender. Judson v. Great Northern Railway Company, 63 Minn. 248-255, 65 N.W. 447. The offense...