Beasley, C. J. This is a suit brought by Henry Hone as the administrator of the estate of his deceased son, who was a minor and was killed by the carelessness of the servants of the plaintiff in error, the Consolidated Traction Company, in the management of one of their cars.
The statute lying at the basis of the suit provides “that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or the corporation which would have been liable if death had not ensued, shall be liable to an action of damages notwithstanding the death of the person injured,” etc. Gen. Stat., p. 1188, § 10.[239]
The following section directs “that the action shall be brought by and in the name of the personal representatives of the deceased person, and that the amount recovered shall be for the exclusive benefit of the widow and next of kin of such deceased person; and that in every such action the jury may give such damages as they shall deem fair and just, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person,” etc. Id., § 11.
From these extracts from the statute it will be at once perceived that in this suit founded upon it, as in all others of the same class, but two questions are raised, and but two can be raised upon the record, viz., first, could the deceased, if he had survived, have maintained an action? and second, this being so, what pecuniary loss has fallen on his next of kin by reason of his death?
These are the facts constituting the issue to be tried, and no subject for trial can be more clearly defined.
Notwithstanding this it is contended in this case by the counsel of this traction company that they have the right to defeat the action if they can show that the death in question was the result in part of the negligent conduct of the next of kin, although such negligent conduct is not to be imputed to the infant who is deceased. The plaintiff in the present case is not only the personal representative, but is likewise the next of kin, and it is insisted that as the damages that may be recovered will enure exclusively to his benefit, he should in justice not be allowed to recover them if he was in part the cause of their production.
But it is to be remembered that the legal doctrine that bars a party injured by the unintentional misconduct of another by reason of his having himself been, in a measure, the occasion of the resulting damage, is rather an artificial rule of the law than a principle of justice, for its effect generally is to cast the entire loss ensuing from the joint fault upon one of the culpable parties, and oftentimes upon him who is but little to blame. Such a legal regulation has no claim to extension, and to apply it as is now insisted on would be to use it in a novel way. The question whether the deceased was negligent is within the issue formed by the pleading; while the question whether a third person who in his individual capacity has no connection with the suit was negligent has nothing whatever to do with such issue. In the legal practice of this state it is the established course to exclude everything that is not embraced in the issue as the parties have framed it and as it appears upon the record. On the trial of this case the inquiry whether the father of the deceased minor had, by his want of care, been instrumental in the production of the accident, was a matter utterly irrelevant to the subject then submitted to judicial inquiry.
The statute of Iowa, relating to this subject, and our own are similar, and in Wymore’s case (78 Iowa, 396)[240] the court of that state expressed very distinctly what is deemed the correct view of this topic, in these words: “If,” says the opinion, “his parents, by their negligence, contributed to his death, that does not seem to be a sufficient reason for denying his estate relief. Such negligence would prevent a recovery by the parents in their own right.... It is claimed that, ... since they inherited his estate, the rule which would bar a negligent parent from recovering in such case in his own right ought to apply. But the plaintiff seeks to recover in right of the child and not of the parents. It may be that a recovery in this case will result in conferring an undeserved benefit upon the father, but that is a matter which we cannot investigate. If the facts are such that the child could have recovered had his injuries not been fatal, his administrator can recover the full amount of damages which the estate of the child sustained.”
The subject will be found illustrated by a reference to many cases in 4 Am. & Eng. Encycl. L. 88.
My conclusion is that there is no fault to be found with the trial of this case in reference to this point.
[After overruling another objection.]
[By writ of error to review the above judgment of the Supreme Court, the case was brought before the Court of Errors and Appeals. That court was equally divided upon the question whether contributory negligence on the part of the sole next of kin would defeat the action. No opinions on that question are reported. Consolidated Traction Co. v. Hone, 60 New Jersey Law, 444.][241]
Whittle, J.... This action was brought by the defendant in error, Patrick Martin, administrator of Alice Martin, deceased, against the plaintiff in error, the Richmond, Fredericksburg & Potomac Railroad Company, to recover damages for the negligent killing of his intestate, a daughter seven years of age, by a passenger train of the defendant company at a public crossing. The mother of the child was killed in the same collision, and the action was instituted for the sole benefit of the father, who, under the statute, is entitled to the recovery. At the trial there was a verdict for the plaintiff, upon which the judgment under review was rendered.
The defendant adduced evidence tending to prove that Patrick Martin, Jr., a minor eleven years old, and a son of the plaintiff, was put in charge of a two-horse Dayton wagon, as driver by his father, in which his mother and two younger sisters and a negro boy were to be driven from their home in the country to the city of Fredericksburg; that Patrick Martin, Jr., negligently drove upon and attempted to cross the railway track at Falmouth crossing, in plain view of a rapidly approaching train; and that in the collision which followed his mother and two sisters, who occupied a rear seat in the vehicle, were instantly killed. Thereupon the defendant moved the court to instruct the jury that if they believed from the evidence that Patrick Martin, Jr., the son and servant of the plaintiff, attempted to cross the track under the circumstances detailed, his conduct constituted such contributory negligence as to bar a recovery. The court refused to give the instruction, which ruling presents for decision the sole question in the case, namely, whether a father, whose negligence has contributed to the death of his minor child, can, under the statute, in an action instituted by him as administrator, suing for his own benefit, recover damages for the death of the child. The statute requires such actions to be brought by and in the name of the personal representative of the deceased person, and empowers the jury to award such damages as to it may seem fair and just, not exceeding ten thousand dollars.
The primary object of the statute in allowing an action to recover damages for death by wrongful act of another, like its prototype, Lord Campbell’s act, was to compensate the family of the deceased, and was not in the interest of the general estate, the provision being that: “The amount recovered in any such action shall, after the payment of costs and reasonable attorneys’ fees, be paid to the wife, husband, parent, and child of the deceased, in such proportion as the jury may have directed, or, if they have not directed, according to the statute of distributions, and shall be free from all debts and liabilities of the deceased; but if there be no wife, husband, parent, or child, the amount so received shall be assets in the hands of the personal representative, to be disposed of according to law.” Code 1887, secs. 2903, 2905.
It will be observed that by the express language of the statute the damages awarded cannot become assets in the hands of the administrator, to be disposed of according to law, if the decedent is survived by a wife, husband, parent, or child; and the recovery is also made free from all debts of the decedent, thus leaving no doubt of the legislative intent to treat the recovery as wholly independent of the decedent and his estate in the event of the survival of any one of the enumerated kin, and making it enure directly and personally to such next of kin by force of the statute, and not derivatively from the decedent, to whom it never belonged either in fact or in contemplation of law.
The authorities all agree that there can be no recovery where the action is brought in the name and for the benefit of one whose negligence has contributed to the accident. Thus, if the child in this instance had been injured, instead of killed, and the father had brought a common-law action to recover damages for the injury, contributory negligence on his part, if established, would have constituted a bar to the action. But the contributory negligence of the father would interpose no defence to an action by the child for such injury. The rule is that the child’s want of responsibility for negligence can no more be invoked to maintain the action of the negligent father than can the negligence of the latter be imputed to the child to defeat an action by him.
In this case both parties, at the time of the accident, were represented by agents—the defendant company by its employees, and the plaintiff, by his son, to whose care he had confided the custody of the younger sister—and both were responsible for the acts and omissions of their respective agents. Glassey v. Ry. Co., 57 Pa. 172.
In Bellefontaine Ry. Co. v. Snyder, 24 Ohio St. 670, the court said: “Where an infant intrusted to the care and custody of another by the father, is injured through the negligence of a railroad company, the custodian of the child also being guilty of negligence which contributed to the result, although the infant may maintain an action for such injury, the father cannot; the negligence of his agent, the custodian of the child, being in law ‘the negligence of the father.’”
“When an action for negligent injury of an infant is brought by the parent, or for the parent’s own benefit, it is very justly held that the contributory negligence of such parent may be shown in bar of the action, the negligence of his agent to whom he had intrusted the child having contributed to cause the injury; and such negligence, being, in contemplation of law, the parent’s negligence, was held to bar the action.” Beach on Con. Neg., sec. 131.
The doctrine of imputed negligence has no application to the case, but the rule that the negligent father cannot recover is founded upon the fundamental principle that no one can acquire a right of action by his own negligence. The principle involves a maxim of the law as old as the common law itself. The difference between an action by the father for injuries to the child where death does not ensue and an action by the father as administrator of his dead child, brought under the statute for his own benefit, is a difference in form merely, not in substance, and on principle there can be no more reason for permitting a recovery in the latter case than in the former. In both the father is the substantial plaintiff and the sole beneficiary. To allow a recovery in either would be a violation of the policy of the law, which forbids that one shall reap a benefit from his own misconduct. Accordingly the authorities are practically unanimous to the effect that the guiding principle in both classes of cases is identical, and the contributory negligence of the beneficial plaintiff will as effectually defeat a recovery in the one case as in the other.
In Kinkead’s Com. on Torts, sec. 474, the author says the rule is well settled that the negligence of a parent of a minor is a bar to an action by him to recover damages for an injury to the minor, and adds: “It may, however, be contended with equal force that the fact that a parent is a beneficiary in case of death, that contributory negligence on his part should be a defence to an action brought under the statutes now being considered, as well as in an action in his own name for a personal injury. The policy of the law is not to allow a recovery for the benefit of a wrong-doer, and this should be applied as well to actions in the name of another for the benefit of those who may have contributed to the wrong. What shall constitute a defence to this class of actions is not prescribed in these statutes, but is governed by the same principles applicable to personal injuries. It is considered by the majority of cases that the administrator is only a trustee or a mere nominal party, and that the action will be defeated by the contributory negligence of the beneficiaries.” [Remainder of opinion omitted.]
Action of tort for running down the plaintiff while driving on the highway, and breaking his sleigh. Trial in the Court of Common Pleas, before Mellen, C. J., who signed a bill of exceptions, the substance of which is stated in the opinion.
Merrick, J. It appears from the bill of exceptions to have been fully proved upon the trial that the defendant wilfully ran down the plaintiff and broke his sleigh, as is alleged in the declaration. No justification or legal excuse of this act was asserted or attempted to be shown by the defendant; but he was permitted, against the plaintiff’s objection, to introduce evidence tending to prove that it was done while the parties were trotting horses in competition with each other for a purse of money, the ownership of which was to be determined by the issue of the race. And it was ruled by the presiding judge, that if this fact was established, no action could be maintained by the plaintiff to recover compensation for the damages he had sustained, even though the injury complained of was wilfully inflicted. Under such instructions, the jury returned a verdict for the defendant.
We presume it may be assumed as an undisputed principle of law, that no action will lie to recover a demand, or a supposed claim for damages, if, to establish it, the plaintiff requires aid from an illegal transaction, or is under the necessity of showing, and depending in any degree upon an illegal agreement, to which he himself had been a party. Gregg v. Wyman, 4 Cush. 322; Woodman v. Hubbard, 5 Foster, 67; Phalen v. Clark, 19 Conn. 421; Simpson v. Bloss, 7 Taunt. 246. But this principle will not sustain the ruling of the Court, which went far beyond it, and laid down a much broader and more comprehensive doctrine. Taken without qualification, and just as they were given to the jury, the instructions import that, if two persons are engaged in the same unlawful enterprise, each of them, during the continuance of such engagement, is irresponsible for wilful injuries done to the property of the other. No such proposition as this can be true. He who violates the law must suffer its penalties; but yet in all other respects he is under its protection, and entitled to the benefit of its remedies.
But in this case the plaintiff had no occasion to show, in order to maintain his action, that he was engaged, at the time his property was injured, in any unlawful pursuit, or that he had previously made any illegal contract. It is true that, when he suffered the injury, he was acting in violation of the law; for all horse trotting upon wagers for money is expressly declared by statute to be a misdemeanor punishable by fine and imprisonment. St. 1846, c. 200. But neither the contract nor the race had, as far as appears from the facts reported in the bill of exceptions, or from the intimations of the Court in its ruling, anything to do with the trespass committed upon the property of the plaintiff. That he had no occasion to show into what stipulations the parties had entered, or what were the rules or regulations by which they were to be governed in the race, or whether they were in fact engaged in any such business at all, is apparent from the course of the proceedings at the trial. The plaintiff introduced evidence tending to prove the wrongful acts complained of in the writ, and the damage done to his property, and there rested his case. If nothing more had been shown, he would clearly have been entitled to recover. He had not attempted to derive assistance either from an illegal contract or an illegal transaction. It was the defendant, and not the plaintiff, who had occasion to invoke assistance from proof of the illegal agreement and conduct in which both parties had equally participated. From such sources neither of the parties should have been permitted to derive a benefit. The plaintiff sought nothing of this kind, and the mutual misconduct of the parties in one particular cannot exempt the defendant from his obligation to respond for the injurious consequences of his own illegal misbehavior in another.
This was an action on the Rev. Sts., c. 25, § 22, for an injury alleged to have been received by the plaintiff, by reason of a defect in a highway, in the town of Swansey, which said town was by law obliged to repair.
At the trial in the Court of Common Pleas, before Wells, C. J., it appeared that the injury set forth in the plaintiff’s declaration was sustained by him, as therein alleged, on the 11th of June, 1843, being the Lord’s day, in the forenoon of said day, as he was travelling from Warren (R. I.), where he resided, to Fall River, on business connected with the conduct of a cause then pending in the District Court of the United States in Rhode Island. The defendants admitted that they were by law bound to keep said highway in repair.
The judge instructed the jury, that the plaintiff would not be entitled to recover, unless he satisfied them that his travelling on the Lord’s day was from necessity or for purposes of charity; that it being admitted that his business was of a secular character, the burden was upon him to show the necessity of transacting this business on the Lord’s day.
The jury found a verdict for the defendants, and the plaintiff alleged exceptions to the judge’s instructions.[244]
Shaw, C. J. This was an action to recover damages against a town for a defect in their highway, by means of which the plaintiff sustained a loss. It appeared that the accident occurred on the Lord’s day.
It has been repeatedly decided that, to maintain this action, it must appear that the accident was occasioned exclusively by the defect of the highway; to establish which, it must appear that the plaintiff himself is free from all just imputation of negligence or fault. Smith v. Smith, 2 Pick. 621; Howard v. North Bridgewater, 16 Pick. 189. And in these and other cases, it has been held that the burden of proof is on the plaintiff, to prove affirmatively that he was so free from all fault. Adams v. Carlisle, 21 Pick. 146; Lane v. Crombie, 12 Pick. 177. The Court are of opinion that this case comes within this principle. The Rev. Sts., c. 50, § 2, provide that “no person shall travel on the Lord’s day, except from necessity or charity,” and that “every person so offending shall be punished by a fine, not exceeding ten dollars for every offence.” The act of the plaintiff, therefore, in doing which the accident occurred, was plainly unlawful, unless he could bring himself within the excepted cases; and this would be a species of fault on his part, which would bring him within the principle of the cases cited. It would show that his own unlawful act concurred in causing the damage complained of. Then if he would bring himself within either of the exceptions, he must prove the fact which the statute makes an exception. In the case last above cited, Lane v. Crombie, the verdict was set aside, because the judge instructed the jury, that after the negligence of the defendants had been proved, if they relied on want of due care on the part of the plaintiff, the burden was upon them to prove it. This was held to be erroneous, and the burden was decided to be on the plaintiff to prove herself free from all fault. On this ground the verdict was set aside, although the evidence was such that probably the direction in regard to burden of proof had not much influence.
The Court are therefor of opinion that the instruction of the judge was right, that the burden of proof was on the plaintiff to show that his travelling on the Lord’s day was from necessity or for purposes of charity.
What constitutes such necessity or purpose of charity, are questions not raised by the bill of exceptions.
Appeal from County Court for Milwaukee County.
Action against a town to recover damages for injuries to plaintiff’s cattle, caused by the breaking down of a defective bridge which they were crossing.
The plaintiff started from Columbus on a Friday morning with a drove of about fifty cattle, intending to take them to Milwaukee, and sell them. Stopping at Hartland over Saturday night, he resumed his journey on Sunday morning, and at about four o’clock, P. M., reached a public bridge of about seventy-two feet span, over the Menomonee River, in the town of Wauwatosa. The cattle were driven upon the bridge, and when the greater part of them were near the middle of the span the stringers broke, some twelve feet from the abutments at each end, and precipitated the structure, with the cattle upon it, into the river, causing the death of some, severely injuring others, and rendering the remainder for a time unsalable.
The complaint alleges, that the injury was caused by the dangerous, unsafe, and rotten condition of the bridge, and the neglect of the defendant to keep it in proper repair.
The answer denies the negligence charged to the defendant, and alleges that the cattle were driven upon the bridge in so careless and negligent a manner as to cause it to break; and, also, that they were so driven upon the bridge on Sunday.
After hearing the evidence on the part of the plaintiff, the Court granted a nonsuit, on the ground that the plaintiff, being in the act of violating the statute prohibiting the doing of secular business on Sunday, when the injury occurred, could not recover therefor. The plaintiff appealed.[246]
Dixon, C. J. It is very clear that the plaintiff, in driving his cattle along the road and over the bridge, to a market, on Sunday, was at the time of the accident in the act of violating the provisions of the statute of this State, which prohibits, under a penalty not exceeding two dollars for each offence, the doing of any manner of labor, business, or work on that day, except only works of necessity or charity, R. S., c. 183, § 5. It was upon this ground the nonsuit was directed by the Court below, and the point thus presented, that the unlawful act of the plaintiff was negligence, or a fault on his part contributing to the injury, and which will preclude a recovery against the town, is not a new one; nor is the law, as the Court below held it to be, without some adjudications directly in its favor, and those by a judicial tribunal as eminent and much respected for its learning and ability as any in this country. Bosworth v. Swansey, 10 Met. 363; Jones v. Andover, 10 Allen, 18. A similar, if not the very same principle has been maintained in other decisions of the same tribunal. Gregg v. Wyman, 4 Cush. 322; May v. Foster, 1 Allen, 408. But in others still, as we shall hereafter have occasion to observe, the same learned Court has, as it appears to us, held to a different and contradictory rule in a class of cases which it would seem ought obviously to be governed by the same principle. The two first above cases were in all material respects like the present, and it was held there could be no recovery against the towns. In the first, the opinion, delivered by Chief Justice Shaw, and which is very short, commences with a statement of the proposition, repeatedly decided by that Court, “that to maintain the action it must appear that the accident was occasioned exclusively by the defect of the highway; to establish which, it must appear that the plaintiff himself is free from all just imputation of negligence or fault.” The authorities to this proposition are cited, and the statute against the pursuit of secular business and travel on the Lord’s day then referred to, and the opinion proceeds: “The act of the plaintiff, therefore, in doing which the accident occurred, was plainly unlawful, unless he could bring himself within the excepted cases; and this would be a species of fault on his part which would bring him within the principle of the cases cited. It would show that his own unlawful act concurred in causing the damage complained of.” This is all of the opinion touching the point under consideration.
In the next case there was a little, and but a little, more effort at reasoning upon the point. The illustrations on page 20, of negligence in a railway company in omitting to ring the bell of the engine, or to sound the whistle at the crossing of a highway, and of the traveller on the wrong side of the road with his vehicle at the time of the collision, and the language of the Court alluding to such “conduct of the party as contributing to the accident or injury which forms the groundwork of the action,” very clearly indicate the true ground upon which the doctrine of contributory negligence, or want of due care in the plaintiff, rests, but it is not shown how or why the mere violation of a statute by the plaintiff constitutes such ground. Upon this point the Court only say: “It is true that no direct unlawful act of omission or commission by the plaintiff, done at the moment when the accident occurred, and tending immediately to produce it, is offered to be shown in evidence. But it is also true that, if the plaintiff had not been engaged in the doing of an unlawful act, the accident would not have happened, and the negligence of the defendants in omitting to keep the road in proper repair would not have contributed to produce an injury to the plaintiff. It is the disregard of the requirements of the statute by the plaintiff which constitutes the fault or want of due care, which is fatal to the action.” It would seem from this language that the violation of the statute by the plaintiff is regarded only as a species of remote negligence, or want of proper care on his part contributing to the injury.
The two other cases above cited were actions of tort by the owners, to recover damages from the bailees for injuries to personal property loaned and used on Sunday,—horses loaned and immoderately driven on that day. They were decided against the plaintiffs, and chiefly on the ground of the unlawfulness of the act of loaning or letting on Sunday of the horses, to be driven on that day in violation of the statute, which the plaintiffs themselves were obliged to show, and the doctrine of par delictum was applied. It was in substance held in each case that the plaintiff, by the first wrong committed by him, had placed himself in pari delicto with the defendant, with respect to the subsequent and distinct wrong committed by the latter, and the actions were dismissed upon the principle that the law will not permit a party to prove his own illegal acts in order to establish his case.
In direct opposition to the above decisions are the numerous cases decided by the Courts of other States, the Supreme Court of the United States, and the Courts of Great Britain, which have been so diligently collected and ably and forcibly presented in the brief of the learned counsel for the present plaintiff. Of the cases thus cited, with some others, we make particular note of the following: Woodman v. Hubbard, 5 Foster, 67; Mohney v. Cook, 26 Penn. 342; Norris v. Litchfield, 35 N. H. 271; Corey v. Bath, id. 530; Merritt v. Earle, 29 N. Y. 115; Bigelow v. Reed, 51 Maine, 325; Hamilton v. Goding, 55 id. 428; Baker v. The City of Portland, 58 id. 199; Kerwhacker v. Railway Co., 3 Ohio St. 172; Phila., &c. Railway Co. v. Phila., &c. Tow Boat Co., 23 How. (U. S.) 209; Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 M. G. & S. 420.
It seems quite unnecessary, if indeed it were possible, to add anything to the force or conclusiveness of the reasons assigned in some of these cases in support of the views taken and decisions made by the Courts. The cases may be summed up and the result stated generally to be the affirmance of two very just and plain principles of law as applicable to civil actions of this nature, namely: first, that one party to the action, when called upon to answer for the consequences of his own wrongful act done to the other, cannot allege or reply the separate or distinct wrongful act of the other, done not to himself nor to his injury, and not necessarily connected with, or leading to, or causing or producing the wrongful act complained of; and, secondly, that the fault, want of due care or negligence on the part of the plaintiff, which will preclude a recovery for the injury complained of, as contributing to it, must be some act or conduct of the plaintiff having the relation to that injury of a cause to the effect produced by it. Under the operation of the first principle, the defendant cannot exonerate himself or claim immunity from the consequences of his own tortious act, voluntarily or negligently done to the injury of the plaintiff, on the ground that the plaintiff has been guilty of some other and independent wrong or violation of law. Wrongs or offences cannot be set off against each other in this way. “But we should work a confusion of relations, and lend a very doubtful assistance to morality,” say the Court in Mohney v. Cook, “if we should allow one offender against the law, to the injury of another, to set off against the plaintiff that he too is a public offender.” Himself guilty of a wrong, not dependent on nor caused by that charged against the plaintiff, but arising from his own voluntary act or his neglect, the defendant cannot assume the championship of public rights, nor to prosecute the plaintiff as an offender against the laws of the State, and thus to impose upon him a penalty many times greater than what those laws prescribe. Neither justice nor sound morals require this, and it seems contrary to the dictates of both that such a defence should be allowed to prevail. It would extend the maxim, ex turpi causa non oritur actio, beyond the scope of its legitimate application, and violate the maxim, equally binding and wholesome, and more extensive in its operation, that no man shall be permitted to take advantage of his own wrong. To take advantage of his own wrong, and to visit unmerited and over-rigorous punishment upon the plaintiff, constitute the sole motive for such defence on the part of the person making it. In the cases of the horses let to be driven on Sunday, so far as the owners were obliged to resort to an action on the contract which was executory and illegal, of course there could be no recovery; but to an action of tort, founded not on the contract, but on the tort or wrong subsequently committed by the defendant, the illegality of the contract furnished no defence, as is clearly demonstrated in Woodman v. Hubbard, and the cases there cited. The decisions under the provision of the constitution of this State abolishing imprisonment for debt arising out of or founded on a contract express or implied, and some others in this Court strongly illustrate the same distinction. In re Mowry, 12 Wis. 52, 56, 57; Cotton v. Sharpstein, 14 Wis. 229, 230; Schennert v. Kœhler, 23 Wis. 523, 527.
And as to the other principle, that the act or conduct of the plaintiff which can be imputed to him as a fault, want of due care or negligence on his part contributing to the injury, must have some connection with the injury as cause to effect, this also seems almost too clear to require thought or elaboration. To make good the defence on this ground, it must appear that a relation existed between the act or violation of law on the part of the plaintiff, and the injury or accident of which he complains, and that relation must have been such as to have caused or helped to cause the injury or accident, not in a remote or speculative sense, but in the natural and ordinary course of events as one event is known to precede or follow another. It must have been some act, omission, or fault naturally and ordinarily calculated to produce the injury, or from which the injury or accident might naturally and reasonably have been anticipated under the circumstances. It is obvious that a violation of the Sunday law is not of itself an act, omission, or fault of this kind, with reference to a defect in the highway or in a bridge over which a traveller may be passing, unlawfully though it may be. The fact that the traveller may be violating this law of the State, has no natural or necessary tendency to cause the injury which may happen to him from the defect. All other conditions and circumstances remaining the same, the same accident or injury would have happened on any other day as well. The same natural causes would have produced the same result on any other day, and the time of the accident or injury, as that it was on Sunday, is wholly immaterial so far as the cause of it or the question of contributory negligence is concerned. In this respect it would be wholly immaterial also that the traveller was within the exceptions of the statute, and travelling on an errand of necessity or charity, and so was lawfully upon the highway.
The mere matter of time, when an injury like this takes place, is not in general an element which does or can enter at all into the consideration of the cause of it. Time and place are circumstances necessary in order that any event may happen or transpire, but they are not ordinarily, if they ever are, circumstances of cause in transactions of this nature. There may be concurrence or connection of time and place between two or three or more events, and yet one event not have the remotest influence in causing or producing either of the others. A traveller on the highway, contrary to the provisions of the statute, yet peaceably and quietly pursuing his course, might be assaulted and robbed by a highwayman. It would be difficult in such case to perceive how the highwayman could connect the unlawful act of the traveller with his assault and robbery so as to justify or excuse them, or how it could be said, that the former had any natural or legitimate tendency to cause or produce the latter. It is true, it might be said, if the traveller had not been present at that particular time or place, he would not have been assaulted and robbed, but that too might be said of any other assault or robbery committed upon him; for if his presence at one time and place be a fault or wrong on his part, contributing to the assault and robbery in the nature of cause to effect, it must be equally so at every other time and place, and so always a defence in the mouth of the highwayman. Every highwayman must have his opportunity by the passing of some traveller, and so some one must pass over a rotten and unsafe bridge or defective highway before any accident or injury can happen from that cause. Connection, therefore, merely in point of time, between the unlawful act or fault of the plaintiff, and the wrong or omission of the defendant, the same being in other respects disconnected and independent acts or events, does not suffice to establish contributory negligence or to defeat the plaintiff’s action on that ground. As observed in Mohney v. Cook, such connection, if looked upon as in any sense a cause, whether sacred and mysterious or otherwise, clearly falls under the rule causa proxima non remota spectatur.
“The cause of an event,” says Appleton, C. J., in Moulton v. Sanford, 51 Maine, 134, “is the sum total of the contingencies of every description, which, being realized, the event invariably follows. It is rare, if ever, that the invariable sequence of events subsists between one antecedent and one consequent. Ordinarily that condition is usually termed the cause, whose share in the matter is the most conspicuous and is the most immediately preceding and proximate to the event.”
In the present case the weight of the same cattle, upon the same bridge, either the day before or the day after the event complained of, when the plaintiff would have been guilty of no violation of law in driving them, would most unquestionably have produced the same injurious result. And if, on that day even, the driving had been a work of necessity or charity, as if the city of Milwaukee had been in great part destroyed by fire, as Chicago recently was, and great numbers of her inhabitants in a condition of helplessness and starvation, and the plaintiff hurrying up his drove of beef cattle for their relief, no one doubts the same accident would then have happened, and the same injuries have ensued. The law of gravitation would not then have been suspended, nor would the rotten and defective stringers have refused to give way under the superincumbent weight, precisely as they did do on the present occasion. There are many other violations of law, which the traveller or other person passing along the highway may, at the time he receives an injury from a defect in it, be in the act of committing, and which are quite as closely connected with the injury, or the cause of it, as is the violation of which complaint is made against the present plaintiff. He may be engaged in cruelly beating or torturing his horse, or ox, or other animal; he may be in the pursuit of game, with intent to kill or destroy it, at a season of the year when this is prohibited; he may be exposing game for sale, or have it in his possession, when these are unlawful; he may be in the act of committing an assault, or resisting an officer; he may be fraudulently passing a toll gate, without paying his toll; and he may be unlawfully setting or using a net or seine, for the purpose of catching fish, in an inland lake or stream.
All of these are acts prohibited by the same chapter or statute in which we find the prohibition from work and labor on Sunday, and some of them under the same, but most under a greater penalty than is prescribed for that offence, thus showing the character or degree of culpability which was variously attached to them in the opinion of the legislature. And there are many other minor offences, mala prohibita merely, created by statute, which might be in like manner committed. There are in Massachusetts, and doubtless in many of the States, statutes against blasphemy and profane cursing and swearing, the prevention of which seems to be equally if not more an object of solicitude and care on the part of the legislature, than the prevention of labor, travel, or other secular pursuits on Sunday, because more severely punished. It has not yet transpired, we believe, even in Massachusetts, that the action of any person to recover damages for an injury sustained by reason of defects in a highway, has been peremptorily dismissed because he was engaged at the time in profane cursing or swearing, or because he was in a state of voluntary intoxication, likewise prohibited under penalty by statute.
It is obvious that the breaking down of a bridge from the rottenness of the timbers, or their inability to sustain the weight of the person or of his horses and carriage, could not be affected by either of these circumstances, and yet, on the principle of the decisions above referred to in that State, it is not easy to see why the action must not be dismissed. On principle there could be no discrimination between the cases, and it could make no difference in what the unlawful act of the plaintiff consisted at the time of receiving the injury. We must reject the doctrine of those cases entirely and adopt that of the other cases cited, and which is well expressed by the Supreme Court of Maine, in Baker v. Portland, 58 Maine, 199, 204, as follows: “The defendant’s counsel contends that the simple fact that the plaintiff is in the act of violating the law, at the time of the injury, is a bar to the right of recovery. Undoubtedly there are many cases where the contemporaneous violation of the law by the plaintiff is so connected with his claim for damages as to preclude his recovery: but to lay down such a rule as the counsel claims, and disregard the distinction in the ruling of which he complains, would be productive oftentimes of palpable injustice. The fact that a party plaintiff in an action of this description was at the time of the injury passing another wayfarer on the wrong side of the street, or without giving him half the road, or that he was travelling on runners without bells, in contravention of the statute, or that he was smoking a cigar in the street, in violation of municipal ordinance, while it might subject the offender to a penalty, will not excuse the town for a neglect to make its way safe and convenient for travellers, if the commission of the plaintiff’s offence did not in any degree contribute to produce the injury of which he complains.”
Strong analogy is afforded and much weight and force of reason bearing upon this question are found in some of the cases which have arisen upon life policies, and as to the meaning and effect to be given to the condition usually contained in them, exempting the company from liability in case the assured “shall die in the known violation of any law,” &c., and it has been held that the violation must be such as is calculated to endanger life, by leading to acts of violence against, or to the bodily or personal injury or exposure of, the assured, and so to operate in producing his death in the connection of cause to effect. See opinions in Bradley v. Mutual Benefit Life Ins. Co., 45 N. Y. 422.
In the case of Clemens v. Clemens, recently decided by this Court, it became necessary to consider the same question, though under different circumstances, as to what violation of law on the part of the plaintiff would bar his action in a Court of justice and leave him remediless in the hands of an overreaching and dishonest antagonist, and the views there expressed are not without their relevancy and adaptation to the question as here presented. In that case, this Court adopted the rule of law as settled in Massachusetts, favoring the remedy of the plaintiff, against the opposite rule sustained by the adjudications in some of the other States, and consistency of decision seems now clearly to require that our action should be reserved with respect to the rule established by the cases here referred to. The inconsistency upon general principle between these decisions of the same learned Court and those there relied upon and adopted, will, we think, be readily perceived and conceded when carefully examined and considered in connection with each other.