Newcomb v. Boston Protective Department
| Decision Date | 04 May 1888 |
| Citation | 16 N.E. 555,146 Mass. 596 |
| Parties | NEWCOMB v. BOSTON PROTECTIVE DEPARTMENT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Robert M. Morse, Jr., and Wm. M. Richardson, for defendant.
If the facts were as alleged by defendant, the plaintiff's violation of the ordinance in regard to the position of his horse and vehicle necessarily contributed to the injury, and the plaintiff could not maintain his action. "The decisions in this commonwealth are numerous and uniform to the effect that the plaintiff, being engaged in a violation of law, cannot recover, if his own illegal act was an essential element of his case as disclosed upon all the evidence." McGrath v. Merwin, 112 Mass. 467. So it has been held that one traveling on the Lord's day, in violation of the statute, cannot maintain an action against the town for a defect in the highway, Bosworth v Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18; Connolly v. City of Boston, 117 Mass 64. Nor for injuries received on a railroad Stanton v. Railroad Co., 14 Allen, 485; Smith v. Railroad, 120 Mass. 490. See Heland v. Lowell, 3 Allen, 407; Lyons v. Desotelle, 124 Mass. 387; Tuttle v. Lawrence, 119 Mass. 278. In Damon v. Scituate, Id. 66, the plaintiff was allowed to recover although he was violating the statute against passing another team on the right. Spofford v. Harlow, 3 Allen, 176; White v. Lang, 128 Mass. 598; Steele v. Burkhardt, 104 Mass. 59; Kearns v. Sowden, Id. 63; Damon v. Scituate, 119 Mass. 66; and Hall v. Ripley, Id. 135,--will probably be principally relied upon as sustaining the rulings in the present case. But in most of these cases the court was dealing with the question whether, as a matter of law, the plaintiff's violation of the statute or ordinance precluded his right to recover. To give any force to the statute it is submitted that it should be construed as at least relieving the defendants from liability for accidents occasioned to teams driven or standing in the streets in violation of the ordinances. "The right of way" granted to the defendant means the right to proceed rapidly and directly to a fire, so far as it is possible to do so consistently with the rights of others in the street. It means that the ordinary traveler shall get out of the way, or try to get out of the way, and not remain, as the plaintiff did, according to his own evidence, making no effort to move his vehicle from a position, by remaining in which he violated the law, and necessarily exposed himself to danger.
Gaston & Whitney, for plaintiff.
It has been settled, by a long series of decisions, that a person can recover for an injury, although, at the time, he is engaged in an unlawful act, in case such unlawful act does not contribute to the injury. Welch v. Wesson, 6 Gray, 505; Damon v. Scituate, 119 Mass. 66; White v. Lang, 128 Mass. 598. When the facts are complicated and in dispute, this is a question for the jury. See Kidder v. Dunstable, 11 Gray, 342; Steele v. Burkhardt, 104 Mass. 59; Hall v. Ripley, 119 Mass. 135. Upon the conflicting evidence and the various circumstances in the case, it was for the jury to say whether the violation of the city ordinances, if proved, contributed to the injury, or was merely a condition of it; and therefore the defendant's first and fourth requests were rightly refused. The second and fifth requests were for rulings that, if the violations of the above ordinances contributed to the injury, the plaintiff was not in the exercise of due care, and therefore could not recover. The rulings thus requested were contrary to the decisions and the language of the court in Steele v. Burkhardt, 104 Mass. 59; Kearns v. Sowden, Id. 63; Hanlon v. Railroad Co., 129 Mass. 310. It was proper for the judge to state to the jury the difference between a case where the unlawful act contributes to an injury, and a case where such act is only a condition of or remotely connected with it. The rulings requested by the defendant would have been misleading in this respect. If the jury found that the plaintiff's violation of the ordinances had nothing to do with the accident, and that he was in the exercise of due care, while the defendant was negligent, the plaintiff was not prevented from recovering because the defendant had by statute this right of way.
OPINION
The plaintiff brought his action to recover for injuries received, while sitting upon his cab, from the negligent driving of a wagon against it by a servant of the defendant corporation. There was evidence tending to show that, at the time of the accident, he was violating an ordinance of the city of Boston, by waiting in a street without placing his vehicle and horse lengthwise with the street, as near as possible to the sidewalk, and that this illegal conduct contributed to the injury. There was evidence applicable, in like manner, to another similar ordinance, which requires every driver of a vehicle standing in a street to so keep his horse or horses and vehicle as not to obstruct the streets. As to the alleged violation of each of these ordinances, the defendant asked the court to instruct the jury as follows: "If the unlawful act contributed to cause the alleged injury, the plaintiff was not in the exercise of due care, and he cannot recover in this action." The presiding judge declined to give this instruction, and gave none which we deem to be equivalent to it. He instructed the jury in these words: In another part of the charge it was indirectly intimated that, if the plaintiff's unlawful act contributed proximately to produce the injury, he could not recover; but it was nowhere expressly stated. The question before us, then, is whether or not the defendant was entitled to this instruction; in other words, whether, if the plaintiff's unlawful act contributed to cause his injury, it was a bar to his recovery, or merely evidence of negligence which might or might not bar him, according to the view which the jury should take of his conduct as a whole in its relation to the accident. It has often been held that a violation of law at the time of an accident, by one connected with it, is evidence of his negligence, but not conclusive. Hanlon v. Railroad Co., 129 Mass. 310; Hall v. Ripley, 119 Mass. 135; Damon v. Scituate, Id. 66. In recent times a large number of penal statutes have been enacted, in which the legislature has seen fit to punish acts which are not mala in se, and sometimes when in a given case there is no actual criminal intent. On grounds of public policy, laws have been passed under which a person is bound to know the facts in regard to the subject with which he is dealing, when, under possible circumstances, ignorance would not be inconsistent with proper care. One who sells milk must know that it is not adulterated. An unlicensed person must know that what he sells is not intoxicating liquor. Com. v. Boynton, 2 Allen, 160. And if, in a possible case, he trespasses in innocent ignorance, the law gives him no relief. He can only appeal to the sense of justice, and the discretion of the public authorities, to save him from the punishment which the law would inflict. It is obvious that, in suits for negligence, if the contributing conduct of the plaintiff is to be considered as a whole, it may sometimes be found that he has not been guilty of actual negligence or fault, although he has violated the law. One element of his action may be neglect of a duty prescribed by a statute when there are other concurring elements which show that his course was entirely justifiable.
As a general rule, in deciding a question in relation to negligence, each element which enters as a factor into one's act to give it character is to be considered in connection with every other, and the result is reached by considering all together. But, for reasons which will presently appear, illegal conduct of a plaintiff, directly contributing to the occurrence on which his action is founded, is an exception to this rule. Such illegality may be viewed in either of two aspects: Looking at the transaction to which it pertains, as a whole, it may be considered as a circumstance bearing upon the question whether there was actual negligence; or, looking at it simply in reference to the violated law, the act may be tried solely by the test of that law. In the latter aspect, it wears a hostile garb; and an inquiry is at once suggested whether the plaintiff, as a transgressor of the law, is in a position to obtain relief at the hand of the law. In the first view, the illegal conduct comes within the general rule just stated; in the second, it does not. This distinction has not always been observed. A plaintiff's violation of law has usually been discussed in connection with the subject of due care. In Bosworth v. Swansey, 10 Metc. 363, Chief Justice SHAW, after referring to the rule that a plaintiff must be free from "imputation of negligence or fault," says, in reference to unlawful traveling on the Lord's day: "This would be a species of fault on his part which would bring him within the principle of the cases cited." In Jones v. Andover, 10 Allen, 18, Chief Justice BIGELOW says: "The term 'due care,' as usually understood in cases where the gist of the action is the negligence of the defendant, implies not only that a party has not been negligent or careless, but that he has...
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