Standard Oil Co. Of N.J. v. Roberts

• Decision Date: 16 June 1921
• Citation: 107 S.E. 838
• Parties: STANDARD OIL CO. OF NEW JERSEY v. ROBERTS.
• Court: Virginia Supreme Court

107 S.E. 838

STANDARD OIL CO. OF NEW JERSEY

v.ROBERTS.

Supreme Court of Appeals of Virginia.

June 16, 1921.

Error to Law and Chancery Court of City of Norfolk.

Action by A. L. Roberts against the Standard Oil Company of New Jersey. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with instructions.

Robert W. Shultice, of Norfolk, for plaintiff in error.

S. M. Brandt and Herman A. Sacks, both of Norfolk, for defendant in error.

PRENTIS, J. A. L. Roberts, hereinafter called the plaintiff, was injured while a passenger standing upon the running board of a trailer car of the Virginia Railway & Power Company, by reason of a collision with the wheel or rear end of a wagon of the Standard Oil Company of New Jersey, hereinafter called the defendant. There was a verdict and judgment in favor of the plaintiff, and the defendant alleges certain reversible errors occurring at the trial.

The negligence upon which the plaintiff relies grows out of the allegation that the horse and vehicle were left standing in the street in violation of a city ordinance, which reads thus:

"No horse and cart, or horses and other vehicles shall be left standing in any street or lane of the city by the owner or driver thereof, and no horse shall be fed on any street or lane of the city under the penalty of $2 for every offense; but this shall not apply to horses fed at the market during market hours."

The evidence indicates that the horse and wagon were left by the driver unattended and uncontrolled while he delivered certain cans of oil to customers on the opposite side of the street, though there is conflict as to this, there being also testimony introduced by the defendant to the effect that a small boy was left in charge.

The defendant relied chiefly for its defense upon the fact that the plaintiff himself was violating another ordinance of the city which prohibits passengers from standing on the running boards of cars, or from riding on the steps of any cars. This is the same ordinance which is referred to in Virginia Ry. & Power Co. v. Cherry, decided January 20, 1921, 129 Va.——, 105 S. E. 651.

The title of the ordinance relates to the operation of street cars, and the providing for the safety and comfort of passengers on such cars in the city. As originally enacted itprovided that passengers should not stand or be permitted to stand on the running boards of open cars, or to ride on the steps of any car, but, because of the sudden and great increase in the population of the city arising out of war activities, and the consequent overcrowding of the street cars, the ordinance was changed by the board of control, and while the street car company was relieved of the obligation to prevent passengers from riding on the running boards or steps of its cars, the inhibition remained effective as to the passengers.

At the instance of the plaintiff, the court gave this instruction to the jury:

"The court instructs the jury that, if they believe from the evidence that the ordinances of the city of Norfolk prohibit the owner or driver of a horse and cart, or horse and other vehicle, from leaving standing in any street such horse and vehicle, and that the servants of the defendant, the Standard Oil Company, left standing on Church street its horse, hitched to its wagon, not properly attended, and that while said horse was left standing on said Church street, so hitched to said wagon, the horse backed the wagon into the street car upon which the plaintiff was riding as a passenger, and that the sole proximate cause of the injury sustained by the plaintiff, as alleged in the declaration, was caused thereby, they must find for the plaintiff against the said Standard Oil Company."

The defendant offered the following instruction, which was refused:

"The court instructs the jury that, if they believe from the evidence that an ordinance of the city of Norfolk provided that passengers shall not stand or be permitted to stand on the running boards of open cars in the city of Norfolk, and if they further believe from the evidence that the plaintiff, at the time of the injury complained of, was riding upon the running board of such a car, and that the position so assumed by the plaintiff was a proximate cause of, and directly contributed to the injury sustained by the plaintiff, then the plaintiff was guilty of contributory negligence, and the jury must find for the defendant, the Standard Oil Company."

This refusal is assigned as error.

It is noted that the instruction given for the plaintiff makes no reference whatever to the fact that he was himself standing upon the running board of the car, in violation of the city ordinance. It is theoretically correct, in that it tells the jury that they must find for the plaintiff if the negligence of the defendant which is charged was the sole proximate cause of the injury complained of. It is not sufficient, however, in a case of this sort, thus to submit such a question of fact as that here arising to a jury without either explanation or qualification, for courts and writers have long been debating proximate cause and undertaking to define it. The debate continues, and the practical difficulties of either defining it or applying the defini tions already given to concrete cases multiply, rather than diminish. Such an instruction should properly have included some reference to the opposing contention of the defendant namely, that a proximate, efficient, or concurring cause of the injury was the negligence of the plaintiff himself in violating another ordinance of the city. Perhaps this error could be disregarded if the court had given the instruction No. 1 which the defendant prayed for. This instruction, however, was refused, and in our view this clearly constitutes reversible error, for it is similar to instructions A, B, and E, which were approved by this court in Southern Ry. Co. v. Rice, 115 Va. 235, 78 S. E. 592.

The question involved is whether the violation of an ordinance, which certainly, either as a cause or condition, bears some relation to the plaintiff's injury, is as a matter of law contributory negligence, or is merely evidence tending to show such contributory negligence. That case clearly holds that, if an act which is prohibited by city ordinance directly contributes to the injury as a proximate and concurring cause, then the plaintiff cannot recover. The jury is not permitted to decide whether or not the violation of an ordinance under such circumstances is negligence. Manifestly, such a violation is negligence, and the jury should be clearly told so; leaving them to determine, in proper cases, whether, considering all the attendant circumstances, such negligent unlawful act of the plaintiff was a concurring, contributing and efficient cause of the injury.

While this principle is, we believe, almost, if not universally recognized, there is great practical difficulty in applying it. As is said in Newcomb v. Boston Protective Department, 146 Mass. 602, 16 N. E. 558, 4 Am. St. Rep. 359:

"The best minds often differ upon the question whether, in a given case, illegal conduct of a plaintiff was a direct and proximate cause contributing with others to his injury, or was a mere condition of it; or, to state the question in another way, appropriate to the reason of the rule, whether or not his own illegal act was an essential element of his case as disclosed upon all the evidence."

It is impossible to reconcile the cases. Whatever criticisms may justly be made of the decisions or assumptions in certain cases, either that the illegal action of the plaintiff directly contributed to the injury, or should be treated merely as a concurring cause, or where a distinction is drawn between concurring causes and mere conditions or attendant circumstances, there has been no difference of opinion about the rule that when a plaintiff's illegal conduct does directly contribute to his injury it defeats his recovery.

In this case there was evidence tending to show that the horse did not back, as well as evidence tending to show that he did. But the distance between the running board of thecar and the rear of the wagon is shown to have been only eight inches, so that a very slight movement of the horse...