Corbett v. Scott

• Decision Date: 25 May 1926
• Citation: 152 N.E. 467,243 N.Y. 66
• Parties: CORBETT v. SCOTT.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 66

152 N.E. 467

CORBETT

v.SCOTT.

Court of Appeals of New York.

May 25, 1926.

Action by John Corbett, an infant, by Alice B. Corbett, his guardian ad litem, against Leroy Scott. Judgment for plaintiff entered on a verdict of the jury was unanimously affirmed by the Appellate Division (215 App. Div. 763, 212 N. Y. S. 792), and defendant appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, First Department.

Barnett Cohen, William E. Lyons and Frank J. O'Neill, all of New York City, for appellant.

Thomas J. O'Neill and Leonard F. Fish, both of New York City, for respondent.

POUND, J.

The case comes up on leave to appeal granted by the Appellate Division on a question of law not heretofore directly passed on by this court.

The plaintiff, while operating a motorcycle, was run into by defendant's automobile and injured. At the time of the accident he was under the age of 16 years. He had a license to operate his motorcycle which he had obtained by falsely representing his age. He had had 3 years of experience in operating motorcycles. Highway Law (Cons. Laws, c. 25), § 302, subd. 2, provides:

‘ Age of Operator. No person shall operate or drive a motorcycle who is under sixteen years of age.’

He was therefore chargeable with a misdemeanor (a) in making a false statement in his application for a license (Highway Law, § 290, par. 7); (b) in operating the motorcycle in violation of law. Highway Law, § 308. For the latter offense he would be punishable with a fine not exceeding $25. Article XI-A of the Highway Law (section 300) provides:

‘Except as herein otherwise expressly provided, this article shall be exclusively controlling * * * 4. On the punishment for the violation of any of the provisions of this article.’

[1] The trial justice charged the jury, in substance, that plaintiff was prima facie guilty of negligence in operating the motorcycle when under the age of 16 years but that the jury might find him free of contributory negligence if his immature age in no way contributed to the happening of the accident. In so doing he followed the rule laid down in Martin v. Herzog, 228 N. Y. 164, 126 N. E. 814. That was a case where the plaintiff's intestate was traveling in a buggy without lights after sunset which was struck by defendant's automobile. We held that the omission of lights was culpable and may or may not have been a contributing cause of the injury; the question was for the jury. The rule was again stated in Brown v. Shyne, 242 N. Y. 176, 151 N. E. 197, where the court had under consideration the question of negligent treatment by a chiropractor practicing medicine without a license, as follows:

‘Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence.’

To charge otherwise was held to be error; the jury might not infer negligence producing injury merely from the violation of the statute, although such violation may be shown, if relevant, in connection with other facts. Breach of statutory duty may in some cases create liability per se, either for negligence because the Legislature has established the line of causation between violation of statute and injury, or without regard to negligence. Karpeles v. Heine, 227 N. Y. 74, 124 N. E. 101. It may be difficult to assign a given case to its proper classification in this regard (Martin v. Herzog, supra), but the general rule was properly applied in this case.

[3] The appellant goes further. He presents the question whether the plaintiff was a trespasser on the public highway because he was, by reason of his age, operating his motorcycle in violation of law. If so, it is contended that defendant was not liable for mere negligence; that some reckless or willful act must be shown. This point was not raised or reached in Martin v. Herzog, supra. A wide range of opinion is expressed in different jurisdictions on the fundamental principle involved. The rights of those who traveled on Sunday in violation of law have frequently been considered. Shaw, C. J., in Bosworth v. Inhabitants of Swansey, 10 Metc. (Mass.) 363, 365 (43 Am. Dec. 441) said:

‘That act of the plaintiff [i. e., driving on business on the Lord's Day], in doing which the accident occurred, was plainly unlawful; * * * and this would be a species of fault on his part. * * * It would show that his own his part. * * * It would show that his own complained of.’

But New York, not viewing the violation of the Sunday laws as so grievous an offense as did its puritanical neighbor, took the contrary view. Danforth, J., in Platz v. City of Cohoes, 89 N. Y. 219 (42 Am. Rep. 286), gives cogent reasons why the trivial offense of traveling on Sunday for pleasure should not defeat a right of recovery when one is injured by the negligence of another:

‘It must appear that the disobedience contributed to the accident, or that the statute created a right in the defendant, which it could enforce. * * * The traveler is not declared to be a trespasser upon the street, nor was the defendant appointed to close it against her. * * * The act of travel is not one which usually results in injury. * * * At common law the act was not unlawful, and the plaintiff was still under its protection.’

So Massachusetts (Dudley v. Northampton Street Railway, 202 Mass. 443, 89 N. E. 25,23 L. R. A. [N. S.] 561) applied the rule to a person operating an unlicensed automobile in violation of statute, and held that he is a trespasser on the highway and may not recover for any injury to himself or his car unless the injury is caused by some reckless, wanton, or willful act. Why? Automobiles, whose appearance is frightful to most horses that are unaccustomed to them, introduce a new element of danger, and great care...