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—

_Exceptions sustained._[249]

HEMMING _v._ CITY OF NEW HAVEN SUPREME COURT OF ERRORS, CONNECTICUT, JANUARY 4, 1910. _Reported in 82 Connecticut Reports, 661._

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]

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