Tort for injury alleged to have been caused to the plaintiffs’ horse by the negligence of the defendant’s servant; submitted to the judgment of the Superior Court, and, on appeal, of this Court, upon the following award of an arbitrator as upon a statement of agreed facts:—
“I find that the injury to the plaintiffs’ horse, for which they seek to recover damages in this action, was occasioned by the negligence and want of due care of the defendant’s servant, then in the employment of the defendant. At the time of the injury, the plaintiffs’ wagon, to which the injured horse was attached, was placed in Clinton Street in the city of Boston, by the plaintiffs’ driver, having the care of the wagon for the loading of certain articles, the weight of which in each and every package thereof was less than five hundred pounds; and the wagon was then wholly or in part backed and placed across Clinton Street, and thereby the plaintiffs were guilty of a violation of an ordinance of the city, which provides as follows: ‘And for the loading or unloading of any dirt, bricks, stones, sand, gravel, or of any articles, whether of the same description or not, the weight of which in any one package shall be less than five hundred pounds, no truck, cart, wagon, sleigh, sled, or other vehicle shall be wholly or in part backed or placed across any street, square, lane, or alley, or upon flag-stones or crossings of the same, but shall be placed lengthwise, and as near as possible to the abutting stone of the sidewalk or footway; and any owner or driver or other person having the care of any such vehicle, violating either of the provisions of this section, shall be liable to a fine of not less than five dollars, nor more than twenty dollars, for each offence.’ It is in evidence that, at the time of the injury, there was sufficient room, with proper care, for the defendant’s team to pass through Clinton Street (a greater degree of care being required by reason of the position of the plaintiffs’ team as aforesaid, but not greater than the defendant was bound to use, in my judgment), but the defendant’s servant, in passing between the plaintiffs’ horse and the opposite curbstone, ran over and upon the hoof of the plaintiff’s horse, with a heavy team, and in so doing was guilty of the negligence which I report; and I further find, that the only fault upon the part of the plaintiffs is the fact of their horse and wagon having been placed against the curb in violation of the city ordinance above mentioned.
“In case the Court shall find, under the foregoing statement of facts, that the violation hereinbefore mentioned of said ordinance, on the part of the plaintiffs’ driver, debarred the plaintiffs from maintaining their action for damages, my award would be judgment for the defendant for his costs of court, with the costs of this reference; otherwise, my award would be for the plaintiffs, for the sum of $225 and their costs of court.”
Chapman, C. J. The act complained of by the plaintiffs is, that while their horse was standing on Clinton Street, the defendant’s servant, while driving a heavy team along the street, carelessly drove it upon the hoof of the plaintiffs’ horse, and injured him. The award, which the parties have agreed to accept as a statement of facts, finds that the injury was occasioned by negligence and want of due care in the defendant’s servant. The terms of this finding imply that there was no negligence on the part of the plaintiffs, which contributed to the injury. And it is further found that, though the plaintiffs’ team was standing there in violation of a city ordinance, yet there was room for the defendant’s team to pass by, using due care, and the only fault of the plaintiffs consisted in the violation of the city ordinance. It is not found that this violation contributed to the injury. It is said by Bigelow, C. J., in Jones v. Andover, 10 Allen, 20, that, “in case of a collision of two vehicles on a highway, evidence that the plaintiff was travelling on the left side of the road, in violation of the statute, when he met the defendant, would be admissible to show negligence.” So the evidence that the plaintiffs’ team was standing in the street in violation of a city ordinance was admissible to show negligence on their part. It did show negligence in respect to keeping the ordinance, but did not necessarily show negligence that contributed to the injury. And, notwithstanding this evidence, it was competent to the arbitrator to find, as a fact, that, towards the defendant, the plaintiffs were guilty of no negligence, but were careful to leave him ample room to pass. He did so find in substance; and his finding is agreed to as a fact.
A collision on the highway sometimes happens, when both parties are in motion, and both are active in producing it. In such cases, the plaintiff must prove that he was not moving carelessly. But the collision sometimes happens, as in this case, when the plaintiffs’ team is standing still. In such a case, he must prove that his position was not so carelessly taken as to contribute to the collision. The fact is here found that it was not so taken, though it was in violation of the ordinance. There was therefore no such negligence on his part as to defeat the action.
Actions founded on negligence are governed by a plain principle. The plaintiffs’ declaration alleges that the injury happened in consequence of the negligence of the defendant. This is held to imply that there was no negligence on the part of the plaintiff which contributed to the injury; and to throw upon him the burden of proving the truth of the allegation. It may depend upon care exercised by himself personally, or by his coachman, if he is riding; or by his teamster, in his absence; or by the person in charge of him, if he is an invalid, or an infant of tender years, or in any way so situated as to need the care of another person in respect to the matter. If there was want of care, either on the part of himself or the person acting for him, and the injury is partly attributable directly to that cause, he cannot recover, simply because he cannot prove what he has alleged. Among the numerous cases sustaining this view are, Parker v. Adams, 12 Met. 415; Horton v. Ipswich, 12 Cush. 488; Holly v. Boston Gas Light Co., 8 Gray, 131; Wright v. Malden & Melrose Railroad Co., 4 Allen, 283; Callahan v. Bean, 9 Allen, 401.
But it is further contended that these plaintiffs are compelled to prove their own violation of law in order to establish their case, and therefore the action cannot be maintained. The substance of the ordinance referred to is, that for loading and unloading packages weighing less than five hundred pounds, wagons shall stand lengthwise of streets, and not crosswise, under a prescribed penalty. The plaintiffs were loading packages of less weight, and their wagon was standing crosswise of the street. But proof of the weight of these packages was not necessary. In this respect the case is like that of Welch v. Wesson, 6 Gray, 505, where the plaintiff was injured while he was trotting his horse illegally. It is unlike the cases of Gregg v. Wyman, 4 Cush. 322, and Way v. Foster, 1 Allen, 408, which were decided in favor of the defendant upon the ground that the plaintiff was obliged to lay the foundation of his action in his own violation of law. Even in those cases, the violation of law by the plaintiffs would not have justified an assault and battery or a false imprisonment of the plaintiffs. In this case, if the packages had weighed more than five hundred pounds, the position of the team would have been the same. In Spofford v. Harlow, 3 Allen, 176, it was held that, though the plaintiff’s sleigh was on the wrong side of the street, in violation of law, the defendant was liable, if his servant ran into the plaintiff carelessly and recklessly, the plaintiff’s negligence not contributing to the injury. And it is true generally, that while no person can maintain an action to which he must trace his title through his own breach of the law, yet the fact that he is breaking the law does not leave him remediless for injuries wilfully or carelessly done to him, and to which his own conduct has not contributed.
Tort for personal injuries occasioned to the plaintiff, a cab-driver, by a collision between the cab and a wagon of the defendant.
At the trial in the Superior Court, before Blodgett, J., evidence was introduced tending to show that the defendant was incorporated under the St. of 1874, c. 61,[248] for the protection of life and property at fires in the city of Boston, and that the collision occurred while one of its wagons, with its regular complement of men, was responding to a fire alarm; that the wagon was proceeding along Washington Street in a northerly direction; that the cab, upon which the plaintiff was sitting, was one of several cabs standing in a line upon the easterly side of Washington Street between the easterly track of a street railway and the curbstone; that the plaintiff’s cab and horse were not drawn up lengthwise of the street and as near as possible to the curbstone, but that the horse was facing the sidewalk at an angle so that the body of the cab projected eighteen or twenty inches into the street beyond the line of the other cabs; and that the wagon of the defendant was driven negligently into the cab, causing the accident.
The defendant asked the judge to instruct the jury as follows:—
“1. If the plaintiff, at the time of the accident, was violating the ordinance of the city of Boston, to wit, ‘Every owner, driver, or other person having the care and ordering of a vehicle shall, when stopping in a street, place his vehicle and the horse or horses connected therewith lengthwise with the street, as near as possible to the sidewalk,’ that was an unlawful act, and he cannot recover in this action. 2. If that unlawful act contributed to cause the alleged injury, the plaintiff was not in the exercise of due care, and therefore he cannot maintain this action. 3. Under section 3, chapter 61, of the Acts of 1874, ‘The officers and men of the Boston Protective Department, with their teams and apparatus, shall have the right of way, while going to a fire, through any street, lane, or alley in the city of Boston,’ said defendant is not liable for an accident caused by the collision of one of its teams, while going to a fire, with a vehicle standing in the streets, in violation of either of the city ordinances. 4. If the plaintiff, at the time of the action, was violating the ordinance of the city of Boston, to wit, ‘Every driver of a vehicle shall remain near it while it is unemployed or standing in a street, unless he is necessarily absent in the course of his duty and business, and he shall so keep his horse or horses and vehicle as not to obstruct the streets,’ that was an unlawful act, and he cannot recover in this action. 5. If that unlawful act contributed to cause the alleged injury, the plaintiff was not in the exercise of due care, and therefore he cannot maintain this action.”
The judge refused to give these instructions, but instructed the jury as to the effect of a violation of the ordinance as to the position of a vehicle and horse while standing in a street, stating that the rule was applicable to both ordinances as follows:—
“Bearing in mind the provision of the regulation as to the position of a vehicle when not in motion, I instruct you as to the law, that if, at the time of the injury to the plaintiff, he allowed his carriage to stand in the street in violation of this ordinance, such violation is evidence of negligence on his part; and, if such negligence directly contributed to the injury, the plaintiff cannot maintain the action. It cannot be said, as matter of law, that the fact that the plaintiff was violating a city ordinance necessarily shows negligence that contributed to the injury. Whether the position of the plaintiff’s horse and carriage, in violation of an ordinance, did or did not contribute to the injury, is a question of fact for the jury; and in determining this question, the jury will take into consideration all the surrounding facts and circumstances.... The plaintiff must prove that his position was not so carelessly taken as to contribute to the collision; and the fact that his position was in violation of the ordinance is not conclusive proof of negligence which contributed to the injury. Or, stating the general rule in a somewhat different form, the fact that the plaintiff is engaged in violating the law does not prevent him from recovering damages of the defendant for an injury which the defendant could have avoided by the exercise of ordinary care, unless the unlawful act contributed proximately to produce the injury.... If, applying these rules, you are of the opinion that there was no negligence, in other words, no carelessness, on the part of the plaintiff, which directly contributed to the injury, then the plaintiff is entitled to maintain this action, if he proves another proposition; and as to that, the burden is upon him. And that proposition is, that the defendant’s servants, in the care and management of this wagon, at the time the plaintiff was injured, were negligent.”
The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.
Knowlton, J. 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 so to 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 that unlawful act contributed to cause the alleged injury, the plaintiff was not in the exercise of due care, and therefore he cannot maintain 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: “If, at the time of the injury to the plaintiff, he allowed his carriage to stand in the street in violation of this ordinance, such violation is evidence of negligence on his part; and, if such negligence directly contributed to the injury, the plaintiff cannot maintain the action. It cannot be said, as matter of law, that the fact that the plaintiff was violating a city ordinance necessarily shows negligence that contributed to the injury.” 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. South Boston Horse Railroad, 129 Mass. 310; Hall v. Ripley, 119 Mass. 135; Damon v. Scituate, 119 Mass. 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. Commonwealth 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 Met. 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 travelling 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 been guilty of no violation of law in relation to the subject-matter or transaction which constitutes the cause of action.”
In Steele v. Burkhardt, 104 Mass. 59, an action for negligence in driving against the plaintiffs’ horse, which was left standing in a street in violation of an ordinance, Chief Justice Chapman considers the general subject of the plaintiffs’ due care, and then treats particularly the contention of the defendant that the plaintiffs were compelled to prove their violation of law in order to establish their case.
McGrath v. Merwin, 112 Mass. 467, was an action founded on the defendant’s alleged negligence in starting the machinery of a mill, while the plaintiff was at work in the wheel-pit making repairs on the Lord’s day, and Mr. Justice Morton, in delivering the opinion, deals with the case solely upon the principle that Courts will not aid a plaintiff whose action is founded upon his own illegal act, and says, “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.” He further states the rule in such cases to be, that, “if the illegal act of the plaintiff contributed to his injury, he cannot recover; but though the plaintiff at the time of the injury was acting in violation of law, if his illegal act did not contribute to the injury, but was independent of it, he is not precluded thereby from recovering.”
In Davis v. Guarnieri, 45 Ohio St. 470, Owen, C. J., states, as the second of three considerations upon which the doctrine of contributory negligence is founded, “the principle which requires every suitor who seeks to enforce his rights or redress his wrongs to go into court with clean hands, and which will not permit him to recover for his own wrong.”
No case has been brought to our attention, and upon careful investigation we have found none, in which a plaintiff whose violation of law contributed directly and proximately to cause him an injury has been permitted to recover for it; and the decisions are numerous to the contrary. Hall v. Ripley, 119 Mass. 135; Banks v. Highland Street Railway, 136 Mass. 485; Tuttle v. Lawrence, 119 Mass. 276, 278; Lyons v. Desotelle, 124 Mass. 387; Heland v. Lowell, 3 Allen, 407; Steele v. Burkhardt, 104 Mass. 59; Damon v. Scituate, 119 Mass. 66; Marble v. Ross, 124 Mass. 44; Smith v. Boston & Maine Railroad, 120 Mass. 490. And it is quite immaterial whether or not a plaintiff’s unlawful act contributing to his injury is negligent or wrong when considered in all its relations. He is precluded from recovering on the ground that the Court will not lend its aid to one whose violation of law is the foundation of his claim. Hall v. Corcoran, 107 Mass. 251.
While this principle is universally recognized, there is great practical difficulty in applying it. 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 is an essential element of his case as disclosed upon all the evidence. Upon this point it is not easy to reconcile the cases. It has been unanimously decided that in Gregg v. Wyman, 4 Cush. 322, there was error in holding a plaintiff’s illegal conduct to be an essential element of his case, when in fact it was merely incidental to it. Hall v. Corcoran, ubi supra. But whatever criticisms may have been made upon the decisions or the assumptions in certain cases, that illegal action of a plaintiff contributed to the result, or was to be treated as a concurring cause, or upon language in disregard of the distinction between a cause and a condition, there has been none upon the doctrine that, when a plaintiff’s illegal conduct does directly contribute to his injury, it is fatal to his recovery of damages. Baker v. Portland, 58 Maine, 199; Norris v. Litchfield, 35 N. H. 271; Sutton v. Wauwatosa, 29 Wis. 21.
The plaintiff relies with great confidence upon the case of Hanlon v. South Boston Horse Railroad, 129 Mass. 310, in which the presiding judge at the trial refused to rule, that, “if the defendant was driving at a rate of speed prohibited by the ordinance of the city of Boston, and this speed contributed to the injury, this fact would itself constitute negligence on the part of the defendant, and would entitle the plaintiff to recover if he was in the exercise of due care,” and his refusal was held right by this Court. In giving the opinion, after pointing out that driving at a rate of speed forbidden by the ordinance might have occurred without fault of the driver, and might have been justified by circumstances authorizing the jury to find that there was no negligence, Mr. Justice Colt said, “It is not true that, if an unlawful rate of speed contributed to the injury, that alone would give the plaintiff a right to recover, if he was without fault.” There are intimations, without adjudication, to the same effect, in Wright v. Malden & Melrose Railroad, 4 Allen, 283, and in Lane v. Atlantic Works, 111 Mass. 136. See also Kirby v. Boylston Market Association, 14 Gray, 249; Heeney v. Sprague, 11 R. I. 456; Brown v. Buffalo & State Line Railroad, 22 N. Y. 191; Flynn v. Canton Co., 40 Md. 312.
But there is nothing in the language used in Hanlon v. South Boston Horse Railroad inconsistent with the principle which we have already stated. That decision related to the liability of a defendant. It may be, where a penal statute does not purport to create a civil liability, or to protect the rights of particular persons, that a violation of it will not subject the violator to an action for damages, unless his act, when viewed in connection with all the attendant circumstances, appears to be negligent or wrongful. And at the same time Courts may well hold that, in the sanctuary of the law, a violator of law imploring relief from the consequences of his own transgression will receive no favor.
The instruction requested in the case at bar would have become applicable only upon a finding by the jury that the plaintiff’s unlawful act contributed to cause the injury. The jury may have so found; and we are of opinion that upon such a finding, irrespective of the question whether viewed in all its aspects his act was negligent or not, the Court could not properly permit him to recover. The instruction, therefore, should have been given.
The Court rightly refused the instruction requested, that the plaintiff could not recover if at the time of the accident he was violating the ordinance, and so doing an unlawful act. This request ignored the distinction between illegality which is a cause, and illegality which is a condition of a transaction relied on by a plaintiff, or between that which is an essential element of his case when all the facts appear, and that which is no part of it, but only an attendant circumstance. The position of a vehicle, which has been struck by another, may or may not have been one of the causes of the striking. Of course it could not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly and proximately produces, or helps to produce, a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. If the position of the plaintiff’s vehicle was such as, in connection with ordinary and usual concurring causes, would naturally produce such an accident, that indicates that it contributed to it. But even in that case, external causes may have been so exclusive in their operation, and so free from any relation to the position of the vehicle, as to have left that a mere condition, without agency in producing the result. What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case; and such it has been held to be in many cases like the one before us. Damon v. Scituate, 119 Mass. 66; Hall v. Ripley, 119 Mass. 135; Welch v. Wesson, 6 Gray, 505; Spofford v. Harlow, 3 Allen, 176; White v. Lang, 128 Mass. 598; Baker v. Portland, 58 Maine, 199; Norris v. Litchfield, 35 N. H. 271; Sutton v. Wauwatosa, 29 Wis. 21.
The defendant’s third request for an instruction was rightly refused, for reasons which have already been stated. The statute referred to does not relieve the defendant from liability for negligence to a plaintiff whose unlawful act or want of due care does not contribute to his injury. In the opinion of a majority of the Court the entry must be—
Roraback, J. On September 21st, 1907, Ley & Company, electrical contractors, were constructing a conduit on Chapel Street in New Haven, under a contract with the United Illuminating Company, for the purpose of laying its underground system of wiring in said highway, and for that purpose had caused an excavation to be made on Chapel Street. On September 21st an automobile owned by the plaintiff, and driven by him personally, came through Temple Street in a southerly direction and ran into this excavation, causing the injuries described in the complaint. This automobile had been purchased by the plaintiff on July 27th, 1906, of one Holcombe. Prior thereto the plaintiff had owned another automobile, which was duly registered by the secretary of State, pursuant to the statute then in force. The plaintiff had not made application to the secretary of State for registration of the automobile last purchased, until September 21st, 1907, when he mailed his application, enclosing his check for registration fee, at the post-office in New Haven, to the secretary of State, by whom it was received on September 23d, 1907. On September 28th, 1907, a certificate of registration for the automobile driven by the plaintiff at the time of the accident was issued by the secretary of State, as provided for by law. The registration mark displayed by the plaintiff at the time of the accident bore the number which had been assigned to him as the owner of another automobile owned by him, and which had been disposed of prior to the accident.
The reasons of appeal relied upon are that the court erred in refusing to charge as requested, and in the charge as given.
The defendant requested the court to instruct the jury as follows: “The burden of proof is on the plaintiff to prove by a preponderance of the evidence that at the time of the accident he had the authority of the State of Connecticut to use his machine on the highways of the State, and if the plaintiff does not prove that he had such authority and license, he cannot recover, and your verdict should be for the defendant. If at the time of the accident the plaintiff did not have the authority of the State of Connecticut to use his automobile described in the complaint on the highways of the State, he cannot recover and your verdict should be for the defendant.”
The court declined to give these rulings, but instructed the jury that the plaintiff’s failure to register would not of itself bar his right to recover, since the law does not provide that one who fails to register his automobile cannot make use of it upon the highway. “The failure of the plaintiff to register his automobile cannot be held to tend to prove contributory negligence on the part of the plaintiff, unless you find that such conduct was illegal, and that it directly contributed to the accident upon which this case is founded; that is, unless you find it to have been the cause, or one of the causes, of this accident; and no such claim, that is, that this did directly contribute to the accident, is made in this case as I understand the contention of counsel.”
The statute relative to automobiles then in force (Public Acts of 1907, chap. 221, pp. 821 to 828), provides, in § 2, for the registering of automobiles and the placing of numbers on machines so registered. The penalty to any person having failed to register or display his number was not more than $100, or imprisonment not more than thirty days, or both.
The plaintiff was violating the statute relating to the registration of automobiles, but that fact does not relieve the defendant. This statute imposed an obligation upon the plaintiff to register his automobile, and for its violation prescribed a penalty. The statute goes no further, and it cannot be held that the right to maintain an action for damages resulting from the omission of the defendant to perform a public duty is taken away because the person injured was at the time his injuries were sustained disobeying a statute law which in no way contributed to the accident. A traveller with an unregistered and unnumbered automobile is not made a trespasser upon the street, neither does it necessarily follow that the property which he owns is outside of legal protection when injured by the unlawful acts of another. “There is some real and more apparent conflict of opinion in the many cases treating of the relation between an illegal act and a coincident injury. In doing an unlawful act a person does not necessarily put himself outside the protection of the law. He is not barred of redress for an injury suffered by himself, nor liable for an injury suffered by another, merely because he is a lawbreaker. In actions to recover for injuries not intentionally inflicted but resulting from a breach of duty which another owed to the party injured—commonly classed as actions for negligence—the fact that the plaintiff or defendant at the time of the injury was a lawbreaker may possibly be relevant as an incidental circumstance, but is otherwise immaterial unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered.” Monroe v. Hartford Street Ry. Co., 76 Conn. 201, 206, 56 Atl. 498.
The registration of the plaintiff’s machine was of no consequence to the defendant. His failure to register and display his number in no way contributed to cause the injury. The accident would have happened if the law in this respect had been fully observed. The plaintiff’s unlawful act was not the act of using the street, but in making a lawful use of it without having his automobile registered and marked as required by law. The statute contains no prohibition against using an unlicensed and unnumbered automobile upon the highways and streets of the State.
The defendant placed much reliance upon the authority of Dudley v. Northampton Street Ry. Co., 202 Mass. 443, 446, 89 N. E. 25. In that case the Supreme Court of Massachusetts was called upon to construe the effect of a statute which provided that no automobile should be operated upon any public highway unless it was registered, &c. Dudley, the plaintiff in that action, was a resident of Connecticut. He had fully complied with the laws of Connecticut, and had a right to operate his machine on the highways of Massachusetts for a period not exceeding fifteen days. After being in Massachusetts more than fifteen days, Dudley’s automobile collided with the defendant’s trolley-car. The Massachusetts court held that Dudley was a trespasser against the rights of all persons lawfully controlling or using the public highways of Massachusetts.
The difference between the Dudley case and the one now under consideration is that in Massachusetts there was a statutory prohibition against using upon the highways of that State an automobile unregistered and unmarked. As already stated, no such provisions appeared in the Connecticut statutes which were in force when the plaintiff’s automobile was injured.
There is no error.
In this opinion the other judges concurred.[250]
Trespass, for breaking and entering the plaintiff’s close in Franklin.
Plea, general issue.
The plaintiff proved that towards night, on June 27, the defendant’s cow was upon his premises grazing, between his house and stable. There was no fence between his land and the highway.
The defendant then proposed to prove that, at that time he pastured his cow in a pasture, on the road to Salisbury, and that one Heath also pastured his cow in the same pasture. On the evening in question, when Heath drove home his own cow, he also let the defendant’s cow out of the pasture. He did this without the knowledge or assent of the defendant, and without any authority, and had never done so before, and after this transaction was requested by the defendant not to do so again. He drove the cow down the road until she came to the point where it connects with the road through the village of Franklin, about two hundred feet from the plaintiff’s land, when she strayed along the road and committed the trespass complained of.
The defendant contended that, under such circumstances he could not be held to be a trespasser merely from the fact that he owned the cow; that he had done no wrongful or improper act; that the act of Heath, being without his knowledge or assent, and without his authority, could not make him liable in trespass; that the action should not have been brought against him, but if any trespass had been committed, should have been brought against Heath.
There being no dispute about the facts, the Court ruled that the action could not be maintained; whereupon a verdict was taken for the defendant, upon which judgment was to be rendered, or it was to be set aside, and judgment rendered for the plaintiff for twenty-five cents damages, as this Court might order.[251]
Woods, C. J. “A man is answerable for not only his own trespass, but that of his cattle also; for if by his negligent keeping they stray upon the land of another (and much more if he permits or drives them on), and they there tread down his neighbor’s herbage, and spoil his corn or his trees, this is a trespass for which the owner must answer in damages.” 3 Black. Com. 211. Such is the law as stated in the words of the author of the Commentaries, which are themselves very high authority on such subjects, and such has been the uniform practice and understanding of the law in all times, so far as the books show, and it is therefore too late to inquire whether the remedy by an action of trespass is founded upon the strictest logical propriety, where the cause of the damage is the negligence, and not the wilful act of the owner of the mischievous beasts.
It is hardly necessary to remark, but for the course of the defendant’s argument, that the proposition quoted from Blackstone relates to the case in which the beasts “stray upon, the land of another,” and not to the case in which they are driven upon it by a stranger; for then the stranger is the author of the wrong, and the horse that he rides, or drives, is the mere passive instrument in his hands, and the owner of it, unless he have lent it for the purpose of the wrong, is as wholly guiltless as any other person. For in that case, the beast does not by the owner’s negligent keeping stray upon the land of his neighbors.
It is substantially upon this ground that Tewksbury v. Bucklin, 7 N. H. Rep. 518, was decided; in which it was held that a party having the custody of the cattle was answerable for the trespass which they committed by straying upon another’s inclosure.
The case finds that the cow “strayed along the road,” and committed the act complained of. It would not be just to hold the party to the strict meaning of a single word, if it appeared by the context to have been used inaccurately; but it appears distinctly that the animal, although driven by Heath some distance from the pasture in the direction of the locus in quo, was not driven upon it so as to be in his hands a mere instrument for committing a trespass. Heath’s trespass was upon the chattel of the defendant, but not upon the soil of the plaintiff. He abandoned the cow, and she being no longer in his custody, “strayed,” and involved the owner in the consequences ordinarily incident to permitting beasts to stray into the inclosures of others.
When Heath abandoned the cow, she was about twelve rods from the lands of the plaintiff. From that period she was no longer under the control of Heath, but was again in the legal possession of the defendant, and under his general custody and control; and like other owners having the care and custody of their beasts at the time, he is answerable in trespass for her act in straying upon the close in question, and grazing there.
For misdirection of the judge who tried the cause, the verdict must be set aside, and a
The Court seem to have held that if the plaintiff’s oxen escaped from his enclosure after the exercise of “ordinary care and prudence in taking care of” them, he was not responsible for their trespass on the defendants’ land. This view of the law, we think, cannot be sustained. The plaintiff was bound at his peril to keep his cattle at home, or at all events to keep them out of the defendants’ close, and no degree of “care and prudence,” if the cattle found their way onto the defendants’ land, would excuse the trespass. It would be a new feature in the law of trespass, if the owner of cattle could escape responsibility for their trespasses by showing he had used “ordinary,” or even extraordinary “care and prudence” to keep them from doing mischief.[253]
Appeal by special case from the decision of the judge of the County Court of Lincolnshire, holden at Stamford.
The action was to recover £1 for the damage done to goods in the plaintiff’s shop.
It appeared that on the 15th of May, 1882, an ox of the defendant was being driven from the live-stock market in Broad Street, Stamford, along a public street called Ironmonger Street, to the defendant’s premises. Ironmonger Street has a paved carriage road with a foot pavement on either side, and the plaintiff was the occupier of an ironmonger’s shop in the street. The ox, after having gone for some distance down the paved carriage road of Ironmonger Street, driven by the defendant’s men, went for a short distance upon the foot pavement on the near or left-hand side, and was driven therefrom by one of the drovers in charge on to the carriage road, and after continuing for a farther distance upon such carriage road, turned again on the pavement about twelve yards from the plaintiff’s shop, and continued upon the pavement until it came opposite the plaintiff’s shop, when it passed through the open doorway into the shop and did damage to goods therein to the amount claimed. The ox was, as soon as possible after such entry and damage, driven by the defendant’s men from the shop to the carriage road and to defendant’s premises in another street; but they did not succeed in getting it out until about three-quarters of an hour from the time when it entered. No special act of negligence was proved on the part of the persons in charge of the ox, and there was no evidence that it was of a vicious or unruly nature, or that the defendant had any notice that there was anything exceptional in its temper or character, or that it would be unsafe to drive it through the public streets in the ordinary and usual way. It was proved that at the time the ox left the carriage-way the second time, one of the two men of the defendant in charge of the animal was walking by its side, having his hand upon it, and that the other man was walking about three yards in the rear of it. The two men in charge proved that they drove it unaccompanied by other cattle from the market, and they both declared that they did all they could under the circumstances to prevent it going on to the foot pavement and entering the open doorway of the plaintiff’s shop, and they stated that the movement of the ox from the carriage-way on to the foot pavement was sudden and could not by any reasonable or available means have been prevented. It was alleged by the defendant’s witnesses, and not contradicted, that it was a usual thing for several oxen to be driven from the Stamford market in charge of two men, and sometimes one man. It was admitted that it was not customary to drive oxen with halters, and that they would probably not go quietly if led by halters.
The County Court judge gave a verdict for the amount claimed, giving the defendant leave to appeal.
The question for the opinion of the Court was, whether upon the facts the plaintiff was entitled to the verdict.[254]
Lord Coleridge, C. J. In this action the County Court judge has found as a fact that there was no negligence on the part of the drivers of the ox, or, at all events, he has not found that there was negligence, and as it lies on the plaintiff to make out his case, the charge of negligence, so far as it has any bearing on the matter, must be taken to have failed.
Now, it is clear as a general rule that the owner of cattle and sheep is bound to keep them from trespassing on his neighbor’s land, and if they so trespass an action for damages may be brought against him, irrespective of whether the trespass was or was not the result of his negligence. It is also tolerably clear that where both parties are upon the highway, where each of them has a right to be, and one of them is injured by the trespass of an animal belonging to the other, he must, in order to maintain his action, show that the trespass was owing to the negligence of the other or of his servant. It is also clear that where a man is injured by a fierce or vicious animal belonging to another, that prima facie no action can be brought without proof that the owner of the animal knew of its mischievous tendencies.
In the present case the trespass, if there was any, was committed off the highway upon the plaintiff’s close, which immediately adjoined the highway, by an animal belonging to the defendant which was being driven on the highway. No negligence is proved, and it would seem to follow from the law that I have previously stated that the defendant is not responsible. We find it established as an exception upon the general law of trespass, that where cattle trespass upon unfenced land immediately adjoining a highway the owner of the land must bear the loss. This is shown by the judgment of Bramwell, B., in Goodwyn v. Cheveley, 28 L. J. (Ex.) 298. That learned judge goes into the question whether a reasonable time had or had not elapsed for the removal of cattle who had trespassed under similar circumstances, and this question would not have arisen if a mere momentary trespass had been by itself actionable. There is also the statement of Blackburn, J., in Fletcher v. Rylands, L. R. 1 Ex. 265, that persons who have property adjacent to a highway may be taken to hold it subject to the risk of injury from inevitable risk. I could not, therefore, if I were disposed, question law laid down by such eminent authorities, but I quite concur in their view, and I see no distinction for this purpose between a field in the country and a street in a market town. The accident to the plaintiff was one of the necessary and inevitable risks which arise from driving cattle in the streets in or out of town. No cause of action is shown, and the judgment of the County Court judge must be reversed.
Stephen, J. I am of the same opinion. As I understand the law, when a man has placed his cattle in a field it is his duty to keep them from trespassing on the land of his neighbors, but while he is driving them upon a highway he is not responsible, without proof of negligence on his part, for any injury they may do upon the highway, for they cannot then be said to be trespassing. The case of Goodwyn v. Cheveley, supra, seems to me to establish a further exception, that the owner of the cattle is not responsible without negligence when the injury is done to property adjoining the highway,—an exception which is absolutely necessary for the conduct of the common affairs of life. We have been invited to limit this exception to the case of high roads adjoining fields in the country, but I am very unwilling to multiply exceptions, and I can see no solid distinction between the case of an animal straying into a field which is unfenced or into an open shop in a town. I think the rule to be gathered from Goodwyn v. Cheveley, supra, a very reasonable one, for otherwise I cannot see how we could limit the liability of the owner of the cattle for any sort of injury which could be traced to them.