Bourne v. Whitman
| Decision Date | 19 May 1911 |
| Citation | 95 N.E. 404,209 Mass. 155 |
| Parties | BOURNE v. WHITMAN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Chas. F. Choate, Jr., for plaintiffs.
Chamberlain & Fletcher, for defendants.
These are actions to recover for injuries received from a collision between two automobiles, in one of which the two plaintiffs were riding. The accident happened late in the evening of August 15, 1908. The defendants asked the court to instruct the jury as follows: 'If the jury finds that at the time of the accident, the defendant was driving on the right of the middle of the traveled part of the way, it is evidence of the exercise of due care on his part; and if the jury shall find that the plaintiff Bourne was driving his machine in an opposite direction and collided with the defendant, this is evidence that the plaintiff was acting in violation of R. L. c. 54, § 1, requiring him to drive to the right of the middle of the traveled part of the road, and unexplained, indicates negligence on the part of the plaintiff.' There was evidence to which the request was applicable. There was also other evidence bearing upon the questions whether the plaintiffs were in the exercise of due care and whether the defendant was negligent. The request was in accordance with the law as laid down in Perlstein v American Express Co., 177 Mass. 530, 59 N.E. 194, 52 L R. A. 959, and in other cases, and it well might have been given. Perhaps the defendants properly might have gone further and asked for an instruction that if the jury found the facts stated in the request, and also found that this violation of the statute was one of the direct and proximate causes of the collision, the plaintiff Bourne could not recover. Newcomb v. Boston Protective Dept., 146 Mass. 596, 16 N.E. 555, 4 Am. St. Rep. 354.
The plaintiff's contention is that the judge was not bound to grant the request, because it asked for a ruling upon the effect of a particular part of the evidence, upon a question on which there was other testimony. It is true that the general subject of the plaintiff's care and the general subject of the defendant's negligence were involved in the two branches of the request, and there was other important testimony bearing upon each of these subjects. Applying the rule strictly, we are of opinion that the judge was not bound to comply with a request in this form, and to select evidential facts that might or might not be found by the jury, and separate them from other parts of the testimony as subjects for a special instruction upon their effect as evidence. Hicks v. N. Y., N.H. & H. R. R., 164 Mass. 424, 41 N.E. 721, 49 Am. St. Rep. 471, and cases cited.
One of the defendants was a father, who owned the automobile, and the other was his minor son 19 years of age, who operated it as his chauffeur a part of each year, without compensation. One of the questions before the court was whether the son, Richard P. Whitman, was acting as his father's servant at the time of the accident, or was running the automobile for himself alone. He had had a license to operate an automobile as chauffeur for his father, William P. Whitman, in 1905, 1906, 1907 and 1908, up to August 14, 1908, when the license expired. He had made an application for another license which was issued to him on August 17th. On August 15, 1908, the day of the accident, he was operating the machine without a license. The evidence tended to show that he was of large experience in this business and presumably thoroughly competent.
The defendants offered to prove that Dr. Harold O. Hunt, who was riding with Richard P. Whitman in the automobile, was the holder of an operator's license which he had with him at the time of the accident. This evidence was excluded and the judge ruled that the possession of a license by another person riding with him, afforded him no justification.
This brings us to the consideration of the language in St. 1903, c. 473, § 4, St. 1905, c. 311, § 4, as follows: 'The provisions of this section shall not prevent the operation of automobiles by unlicensed persons, if riding with or accompanied by a licensed chauffeur or operator.' These words were originally in St. 1903, c. 473, § 6, and this section was repealed by St. 1905, c. 311, § 7. In the repealing statute they were inserted in section 4 of the former act by an amendment of that act, but the word 'hereinafter' in section 5 of St. 1903, c. 473, was not changed to 'herein,' as it should have been when the quoted language which previously had followed this word was now made to precede it by putting it in the earlier section. We are of opinion that the failure to make this change was a mere inadvertence, and that an unlicensed person may operate an automobile, if riding with or accompanied by a licensed chauffeur or operator, under the authority of St. 1903, c. 473, § 4, St. 1905, c. 311, § 4.
The exclusion of the evidence and the ruling were at variance with the provision relied on by the defendant, if the language is taken literally and interpreted broadly. What is the meaning of the language? Evidently it was intended to provide an opportunity for persons to learn to use an automobile by running it under the supervision of a licensed person, and thus acquire skill by practice, without which one never could become skillful. It does not necessarily mean that the unlicensed operator shall be under the legal control of the licensed chauffeur, for the operator might be the owner of the automobile, and the chauffeur a person hired by him to give instructions under his direction. But the language of the statute undoubtedly contemplated by the words, 'riding with or accompanied by,' proximity sufficient to enable the licensed operator to maintain such supervision as might be necessary for safety, and to render assistance, if need be, with reasonable promptness. In a case like the present, where the unlicensed operator was a person of skill and great experience, whose license had expired only the day before and who was expecting another license within a day or two, the supervision and reasonable proximity required by law would not be as close as in ordinary cases, but we are of opinion that the law contemplates at least knowledge on the part of both persons, of the existence of a relation like that of operator without a license, and licensed chauffeur or operator accompanying him, in a position to advise or assist with reasonable promptness, if necessary.
Neither the offer of proof nor the ruling shows plainly what construction was put upon the statute by the judge. He may have made his ruling on the ground that the defendants did not go far enough in their offer, to bring the case within the authority of the statute. As the burden of showing error is on the excepting party, we are inclined to hold that the offer did not go far enough and that no error is shown. But if the relation between the defendant Richard P. Whitman and Dr. Hunt was that contemplated by the statute and known to both of them, we are of opinion that the defendant was protected, even if it was not expected that any particular supervision would be required, and if they were not in such proximity as would be necessary for safety between a licensed chauffeur and an unlicensed operator just beginning to learn to manage a machine.
At the request of the plaintiffs, the judge instructed the jury that 'Richard P. Whitman, at the time of the accident, was a trespasser upon the highway and had no legal right then and there to operate the car.' Under the first part of the instruction the plaintiffs owed him no duty except to refrain from inflicting an injury upon him wantonly or recklessly. He had no right to put his car in the way of the plaintiffs, or to interfere with their use of the road in any part which they chose to occupy. The rights and duties of both parties were different from those of ordinary travelers. Presumably the instruction affected the decision, and if it was erroneous, there must be a new trial.
For the discussion of this part of the case, we assume that the defendant Richard, received no protection from Dr. Hunt's license. He was then violating the law in not having obtained another license before running the car. What effect did this violation have upon the right of either party to recover, when there was an accidental collision between his car and that of another driver on the highway?
It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. It has been said in a general way that such a violation is evidence of negligence of the violator, and it has sometimes been stated that this would show negligence, that can be availed of as a ground of recovery by one who suffers any kind of an injury from him while this illegality continues; but it is now settled that it is not even evidence of negligence, except in reference to matters to which the statute relates. Davis v. John L. Whiting & Son Co., 201 Mass. 91-96, 87 N.E. 199, and cases cited. A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general and criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he suffers a special injury, different in kind from that of the public generally, from the neglect of...
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