Johnson v. Boston & M. R. R.

• Decision Date: 28 June 1928
• Citation: 143 A. 516
• Parties: JOHNSON v. BOSTON & M. R. R.
• Court: New Hampshire Supreme Court

143 A. 516

JOHNSON

v. BOSTON & M. R. R.

Supreme Court of New Hampshire. Hillsborough.

June 28, 1928.

Rehearing Denied Oct 2, 1928.

Exceptions from Superior Court, Hillsborough County; Sawyer, Judge.

Action by Frank B. Johnson against the Boston & Maine Railroad. Order of nonsuit, and plaintiff excepts. Exception overruled.

Case for negligence. There was a collision between an automobile driven by the plaintiff and the defendant's train, at a level highway crossing.

The plaintiff had no license to operate a motor vehicle, and his operation of the automobile, combined with the operation of the train, brought the two in contact. Other facts are stated in the opinion.

At the close of the plaintiff's evidence, a nonsuit was ordered by Sawyer, C. J., who allowed a bill of exception.

Karl E. Dowd and Hamblett & Hamblett, all of Nashua, and Robert W. Upton, of Concord, for plaintiff.

Warren, Howe & Wilson and De Witt C. Howe, all of Manchester, for defendant.

PEASLEE, C. J. "No person shall operate a motor vehicle upon any way in this state unless licensed." Laws 1921, c. 119, § 8. The plaintiff was driving a car in violation of this statute, and the question is presented whether his conduct was a legal wrong as to the defendant. "The true test will be found in a correct ascertainment of the legislative intention." Lindell v. Stone, 77 N. H. 582, 585, 94 A. 963, 965.

The mere fact that one is violating a statute when injured does not bar a recovery. If the violation had nothing to do with the accident, it is immaterial to the issue of responsibility. Wentworth v. Jefferson, 60 N. H. 158, and cases cited; Lindell v. Stone, supra. On the other hand, if the violation is causal, it puts the offender in the class of those who fail to obey legal rules for conduct. Hanscomb v. Goodale, 81 N. H. 150, 124 A. 458; Osgood v. Maxwell, 78 N. H. 35, 95 A. 954; Bresnehan v. Gove, 71 N. H. 236, 51 A. 916; Brember v. Jones, 67 N. H. 374, 30 A. 411, 26 L. R A. 408.

A statute requiring a license for the doing of certain acts makes the unlicensed actor a wrongdoer. He cannot claim a legal right which is dependent upon such illegal conduct. Albertson v. Shenton, 78 N. H. 216, 98 A. 516; Karamanou v. Greene Co., 80 N. H. 420, 124 A. 373; Dunbar v. Locke, 62 N. H. 442; Moskua v. Nassikas, 82 N. H. 559, 133 A. 821.

One object of the statute under consideration is the protection of those using the highway. The right to use the way is limited as it is for protective purposes. That protection was designed to afford an injured party cause for complaint against those making an unlawful use. He was not to be put to proof of negligence. A new standard of right, or rule of conduct, was set up. A different conclusion would leave the ignorant or incompetent operator to experiment upon the highways at the expense of whomever he chanced to meet; and the injured party's sole recourse would be through proof of negligence. It was the design of the Legislature to create an effective barrier against such results.

It is self-evident that the chief object of the statute is to protect other users of the highways. The form of the act reinforces this idea. Not content with the general provision that no person shall operate a motor vehicle until licensed (Laws 1921, c. 119, § 7 ), the statute also makes specific provision that he shall not operate "upon any way in this state." Id. § Si Absence of such a provision has been treated as a distinguishing feature in civil suits. Hemming v. New Haven, 82 Conn. 664, 74 A. 892, 25 L. R. A. (N. S.) 734, 18 Ann. Cas. 240.

The provisions that no license shall be granted to a person under sixteen years of age, nor a chauffeur's license to one under eighteen (section 7) show that the licensing feature of the act was something more than a mere revenue measure. Albertson v. Shenton, 78 N. H. 216, 98 A. 516.

The same idea finds expression in the provision as to those learning to operate. They are permitted upon the highways "if riding with or accompanied by a licensed chauffeur or operator." Id. § 8. Had the prohibition related to revenue only, a provision of this sort would have been superfluous. The provision for revocation if the licensee operates "so as to endanger the public" (Id. § 16) carries the same implication. So also does the provision for suspension of sentence "if no person or property could have been endangered" by the offense. Id. § 15.

Section 13 of the act furnishes further evidence tending to prove that the Legislature understood that the enactment of statutory regulations and prohibitions imposed duties and created rights as to private parties. After prohibiting unreasonable speed, and providing that proof of certain speeds shall be conclusive of unreasonableness, it was added that in civil suits this should be prima facie only. Had there been a legislative purpose to limit the application of the act generally to the imposition of penalties, there would have been no occasion for this special limitation as to private litigation based upon the act. It confirms what is believed to have been the common understanding, that this statute has some materiality in civil suits. It was intended to be both preventive and remedial.

The original statute upon this subject contained a provision that injury to a person or his team by reason of the mere presence of a motor vehicle in the highway should constitute a prima facie case of liability, unless such vehicle was "under the control of" or operated by a licensed operator. Laws 1905, c. 86, § 13. This provision was omitted when the law upon the whole subject was revised in 1911. A new provision was then added, requiring each applicant for a license to pass an examination. Laws 1911, c. 133, § 8. This revision contains no specific reference to civil liability, except that as to speed, before referred to. Section 14. This provision was not in the earlier act, and its insertion in the same act that repealed Laws 1905, c. 86, is of importance as showing the legislative understanding that the new law then adopted was applicable to civil suits. The somewhat crude provision of the first act was repealed, and the whole subject of civil liability was left to follow the usual rule as to violation of statutory duty, with a single exception as to speed.

Applicability of the act to civil suits has been assumed by the court, quite as a matter of course. Hanscomb v. Goodale, 81 N. H. 150, 124 A. 458; Brody v. Gilbert, 82 N. H. 158, 131 A. 142; Summerfield v. Wetherell, 82 N. H. 513, 135 A. 147. The phrase, "the command of statute law," has been aptly used to describe its provisions relating to the use of highways. Dow v. Latham, 80 N. H. 492, 496, 120 A. 258.

It is not like the Sunday law (Wentworth v. Jefferson, 60 N. H. 158, and cases cited), which has no relation to the safety of travel, but was designed solely to promote Sunday observance. Nor is it to be likened to the employment during school time of a boy 15 years old, because the law there in question was designed to promote education, and for no other purpose. Lindell v. Stone, 77 N. H. 582, 94 A. 963. The suggestion is there made that, if the object of the statute had been the protection of the child, the result might be different. Such a situation would be comparable to the present case. Each would be similar to the speed law (Hanscomb v. Goodale, 81 N. H. 150, 124 A. 458), the sliding law (Osgood v. Maxwell, 78 N. H. 35, 95 A. 954), and other regulations of highway use (Nadeau v. Sawyer, 73 N. H. 70, 59 A. 369; Brember v. Jones, 67 N. H. 374, 30 A. 411, 26 L. R, A. 408).

It is urged that, even if the violation be one of which the defendant can complain, it is at most only evidence of fault to be considered by the jury. While these are decisions which would warrant that conclusion, the present rule in this jurisdiction is clearly otherwise.

When the question was first presented, it was decided that the causal violation of a statutory rule of conduct was conclusive proof of a legal fault. The jury were instructed that it was only evidence for them to consider upon the issue of fault. In sustaining an exception to the charge, it was said:

"The question of negligence or fault, under the statute, is one of law, arising upon the facts proved, and not a question of fact to be determined by the jury. It was not, therefore, a proper matter for the consideration of the jury, and should not have been submitted to them. The jury should have been instructed that the plaintiff was entitled to their verdict, upon the facts reported." Brooks v. Hart, 14 N. H. 307, 314.

The so-called Sunday law violations (Norris v. Litchfield, 35 N. H. 275, 69 Am. Dec. 546; Corey v. Both, 35 N. H. 530; Sewell v. Webster, 59 N. H. 586; Wentworth v. Jefferson, 60 N. H, 158).all go upon the ground that the offense was not causal. The same conclusion was reached in Norris v. Litchfield, supra, as to the effect of accidental presence on the wrong side of the road, as related to injuries received through a defect in the highway. The cases are plainly distinguishable from Brooks v. Hart, supra. As the latter case was cited with approval in a decision rendered at the same term as Norris v. Litchfield (Graves v. Shattuck, 35 N. H. 257, 69 Am. Dec. 536), it is evident that it was understood that there was no conflict between the cases.

State v. Railroad, 58 N. H. 408, is expressly put upon the ground that violation of statutory duty to the plaintiff was at least evidence of fault. It was said that "whether the law is more favorable than that for the plaintiff, it is not necessary in this case to inquire." Brooks v. Hart, supra, is cited as authority.

Lyons v. Child, 61 N. H. 72, holds that unintentional driving on the left side of the road, when not negligent, is not within the rule of liability laid down in Brooks v. Hart, supra. The suggestion that, although blamclessness in fact may be made ground for liability, it is not usually cause...