Midal v. Town of Errol

• Citation: 162 A. 232
• Decision Date: 06 September 1932
• Docket Number: No. 2488.,2488.
• Parties: MIDAL v. TOWN OF ERROL.
• Court: Supreme Court of New Hampshire

162 A. 232

MIDAL

v. TOWN OF ERROL.

No. 2488.

Supreme Court of New Hampshire. Coos.

Sept. 6, 1932.

[Copyrighted material omitted.]

Transferred from Superior Court, Coos County; Sawyer, C. J.

Action by Wilfred Vidal, administrator of the estate of Bernadette Vidal, deceased, against the Town of Errol. A nonsuit was ordered, and the case was transferred on plaintiff's exceptions.

New trial.

Case under the highway statute (P. L. c. 89, §§ 1-12) for causing the death of plaintiff's intestate. Trial by jury. At the close of plaintiff's evidence, a nonsuit was ordered by Oakes, J., and the plaintiff excepted. The plaintiff also saved two exceptions to the exclusion of evidence. After the death of Judge Oakes, the foregoing exceptions were transferred by Sawyer, C. J.

The facts are stated in the opinion.

Matthew J. Ryan and Crawford D. Hening, both of Berlin, for plaintiff.

Edmund Sullivan, of Berlin, and Shurtleff & Hinkley, of Lancaster, for defendant.

BRANCH, J.

The plaintiff's intestate met her death upon May 30, 1929, when the automobile in which she was riding was driven over the edge of an embankment alongside a highway in the town of Errol and rolled into the Androscoggin river. The embankment, which was "pretty steep," with a drop of six or eight feet to the river, was unrailed at the point of accident, and the absence of a railing was the defect of which the plaintiff complained. The accident happened late at night and a heavy fog prevailed at the time. There were five persons in the car, three young men and two girls, one of whom was the deceased. The car was driven by one Biron who did not then hold an operator's license, and this fact raises the most important question of law presented by the record.

I. The defendant takes the position that the plaintiff is barred from recovery because the driver of the car was not licensed. It is said that this conclusion is a necessary corollary of our decision in the case of Johnson v. Boston & M. Railroad, 83 N. H. 350, 143 A. 516, 61 A. L. R. 1178, in which it was held that the statute (P. L. c. 101, § 9) makes unlicensed driving a civil wrong which, if causal, bars recovery by one so driving for injuries negligently inflicted upon him. It is argued that the logic of the Johnson Case leads to the conclusion that the object of the statute is "to keep from the highways cars operated by unlicensed drivers. In effect it is the car so operated that is outlawed, just as in Massachusetts, Maine and Vermont it is the car unregistered that is barred." We are therefore urged to hold in accordance with the decisions in those jurisdictions (Dudley v. Northampton St. Railway, 202 Mass. 443, 89 N. E. 25, 23 L. R. A. (N. S.) 561; Feeley v. Melrose, 205 Mass. 329, 91 N. E. 306, 27 L. R. A. (N. S.) 1156, 137 Am. St. Rep. 445; McCarthy v. Leeds, 116 Me. 275, 101 A. 448, L. R. A. 1918D, 671; Hanley v. Poultney, 100 Vt. 172, 135 A. 713, 54 A. L. R. 371) that a New Hampshire car is barred from the highway when "used in a manner contrary to the statute" and that a town "owes no duty to the occupants of such a proscribed vehicle. They are not travelers but trespassers."

This argument is without merit. The reasoning of the Johnson Case furnishes no basis for the conclusion that a motor vehicle, as such, under any circumstances becomes an outlaw or a trespasser upon the highways of this state, and in the case of Clark v. Town of Hampton, 83 N. H. 524, 145 A. 265, 61 A. L. R. 1171, we explicitly declined to adopt the rule which prevails in the jurisdictions above referred to. In the course of that decision we stated our view of the Massachusetts rule as follows: "It seems to us that the Massachusetts cases put the whole subject in an illogical and unreasonable situation. Except in very unusual circumstances the inanimate car is incapable of doing harm. Accidents happen because of the way in which the driver causes the car to move. It is the act of the sentient operator, and not the mechanical response of the operated car, which constitutes the danger to be guarded against." Clark v. Hampton, supra, pages 529, 530 of 83 N. H., 145 A. 265, 268, 61 A. L. R. 1171. We still adhere to the ideas thus expressed. The protective features of our statute have to do only with the acts of sentient operators and not at all with the mere presence of inanimate cars upon the highways of this state. The argument of the defendant that the plaintiff cannot recover because the vehicle in which the deceased was riding had been proscribed must therefore be rejected.

The question whether upon any other theory the conduct of the deceased in riding with an unlicensed driver precludes a recovery by her administrator remains to be considered. The fundamental idea underlying all the arguments which have been advanced in favor of an affirmative answer to this question is that the deceased stood in no better position than the driver himself, and since the statute, as construed in the Johnson Case, would have precluded a recovery by him if he had been injured in the accident, the plaintiff should be, for similar reasons, denied a recovery here. It is thus asserted that the deceased shared the legal disabilities of her driver, and hence it is essential that the nature and extent of those disabilities be clearly understood.

In Johnson v. Railroad, supra, the plaintiff failed to recover because his illegal act of driving without a license was, in part, the cause of his injury. The case merely involved an application of the general rule that: "If the injury results to one while engaged in an act which is a violation of law and the doing of the prohibited act contributes to the injury, no recovery can be had" (1 Cooley, Torts [4th Ed.] § 90), and the point of the decision was that "the act of driving a motor vehicle by an unlicensed person, if causal, is a private wrong rendering the driver accountable for damage caused thereby." L'Esperance v. Sherburne, 85 N. H. 103, 107, 155 A. 203, 206. Nowhere in the Johnson Case is there a suggestion that the unlicensed driver is an outlaw upon the highway or that the legal duty of others to avoid injuring him was abrogated or modified by the statute. To assert that these results follow from the Johnson Case involves a misconception of the scope of that decision and a disregard of the normal rule with reference to the consequences of the violation of a penal statute. "The fact that a person injured was at the time violating the law does not put him out of the protection of the law; he is never put by the law at the mercy of others." 1 Cooley, Torts (4th Ed.) § 92. The extent of the plaintiff's right to protection was not the point at issue in the Johnson Case, nor is it at issue here. We are at this time concerned solely with the legal effect of her conduct and not at all with the extent of the defendant's duty.

Unless the law positively enjoins upon one the duty to do or omit to do a particular act, conduct under a given set of circumstances presents only a question of due care with reference to the danger of personal injury. Fisher v. Cedar Rapids & M. C. R. Co., 177 Iowa, 406, 157 N. W. 860. Therefore, if the plaintiff is to be denied a recovery under the principle of the Johnson Case, it must be because she was engaged in an act prohibited by law and the doing of the prohibited act contributed to cause her injury The question then resolves itself into this, Was the deceased, while riding with Biron, engaged in an act which was a violation of law?

It should be noted in the first place that there is nothing in the language of the statute to indicate that such conduct was forbidden. We search the motor vehicle law in vain for any indication of a legislative purpose that the passengers in a car driven by an unlicensed driver should be classed as wrongdoers, and for that reason denied a recovery for injuries negligently inflicted upon them by others. The gross injustice of such a result in the case of small children (see McCarthy v. Leeds, 116 Me. 275, 101 A. 448, L. R. A. 1918D, 671) indicates the improbability that the Legislature entertained any such purpose. The same may be said of the injustice, only slightly less in degree, of imposing such a disability upon a passenger ignorant of the driver's unlicensed status. The force of these considerations has been recognized in Massachusetts where the Legislature has intervened to mitigate the harshness of the rule that the passengers in an unregistered car are without remedy for injuries negligently inflicted upon them, and has provided that the rule shall not apply to passengers who are not chargeable with knowledge that the statute has been violated. Mass. St. 1915, c. 87.

There is no provision of our statute, however, which makes decisive the question of the passenger's knowledge, nor do we regard it as material in this connection. So far as the language of the act is concerned, passengers with knowledge stand in no worse position than those without it. The Legislature did not manifest any intention with reference to either class.

The purpose of the provision which forbids unlicensed driving is the protection of the public from the acts of incompetent drivers. The unlicensed driver is classed as unfit and denied the use of the highway "because he has not taken the prescribed method to establish his fitness in advance." This "is a reasonable preventive and remedial measure." Johnson v. Railroad, supra, pages 360, 361 of 83 N. H., 143 A. 516, 522. 61 A. L. R. 1178. The last statement could hardly be made with reference to a provision that passengers should share the disabilities of the driver. Its tendency to reduce or prevent incompetent driving would be hardly discernible. For this reason clear evidence of a legislative purpose to establish the rule should be required before according recognition to a principle of such doubtful utility. There is no such evidence in the statute before us. By the final clause of the...