Patrican v. Garvey

• Decision Date: 25 June 1934
• Citation: 190 N.E. 9,287 Mass. 62
• Parties: PATRICAN v. GARVEY (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

287 Mass. 62

190 N.E. 9

PATRICAN

v.GARVEY (two cases).

Supreme Judicial Court of Massachusetts, Essex.

June 25, 1934.

Exceptions from Superior Court, Essex County; W. D. Gray, Judge.

Actions of tort by Herman A. Patrican, p. p. a., and Louis Patrican against Margaret A. Garvey. Findings for defendant in each action, and plaintiffs take exceptions.

Exceptions overruled.

L. Albert, of Gloucester, for plaintiffs.

H. R. Mayo and E. J. Garity, both of Lynn, for defendant.

RUGG, Chief Justice.

These are two actions of tort, tried without a jury. One is to recover compensation for personal injuries alleged to have been sustained by the negligence of the defendant when the minor plaintiff (hereafter called the plaintiff), then a boy between eleven and twelve years old, while riding on a bicycle was in collision with an automobile on Prospect Street in Gloucester during daylight of August 18, 1932; the other is for consequential damages suffered by his father. On the evidence as reported, there seems little if any dispute as to these facts: The plaintiff was riding his bicycle and the defendant operating an automobile in opposite directions and approaching each other. The plaintiff was about in the middle of the street and the defendant to her right of the middle of the street. When the two were within eight or ten feet of each other, the plaintiff turned to his left and crossed the street to the sidewalk on his left. The collision occurred. At the close of the evidence counsel for the plaintiff stated that he agreed that the minor plaintiff at the time of the accident came within the provisions of G. L. (Ter. Ed.) c. 89, § 1. The trial judge ‘made the following findings and ruling: ‘I find that the defendant was negligent. I find that the plaintiff, measuring his conduct by the standard of the average careful boy of his age, has not been shown to be wanting in due care. I find, however, that he violated the provisions of General Laws [Ter. Ed.] chapter 89, section 1, and I find that this violation of the law contributed directly to the accident. Under these circumstances, I rule that the plaintiff is not entitled to recover.’'

It is provided in the cited statute that ‘when persons traveling with vehicles meet on a way, each shall seasonably drive his vehicle to the right of the middle of the traveled part of such way, so that the vehicles may pass without interference.’ By section 5 of the same chapter it is provided: ‘Whoever violates any of the provisions of the four preceding section shall, upon complaint made within three months after the commission of the offence, forfeit not more than twenty dollars. * * *’

Both the plaintiff and the defendant were traveling with vehicles. Foster v. Curtis, 213 Mass. 79, 84, 99 N. E. 961,42 L. R. A. (N. S.) 1188, Ann. Cas. 1913B, 1116. It is plain that the plaintiff was violating the terms of the cited statute. That is a criminal statute. It creates a misdemeanor punishable by a fine, section 5. It has not been argued that the plaintiff was not amenable to that statute.

The findings of the trial judge that the plaintiff was violating the governing statute and that such violation was a cause contributing directly to the accident were findings of fact. They are amply supported by the evidence. They cannot be disturbed. The youth of the plaintiff did not exempt him from the operation of laws designed to regulate the conduct of travelers upon the public ways to the end that the general welfare of the community may be promoted. Commonwealth v. Mead, 10 Allen, 398; Petition of Sheehan, 254 Mass. 342, 150 N. E. 231; G. L. (Ter. Ed.) c. 119, §§ 42 to 83. Any other rule would render travel upon public ways even more hazardous than at present.

It has long been established that one who is violating the criminal law cannot recover for an injury to which his criminality is a directly contributing cause. Such a person is precluded from recovery provided the element of criminality involved in the act and...