58 Me. 199 | Me. | 1870
The plaintiffs suffered serious damage in person and property on the evening of Oct. 18, 1868, by reason of the upsetting of the carriage in which they were riding, in consequence of running over certain piles of stones which had been ■ dumped in the roadway on Cumberland street, by persons in the employ of the street commissioner, and left there over night without guards or lights to protect or warn the traveler. The buggy and harness were well made and in good order, the horse well broken and kind, though spirited, the street much frequented, and the evening too dark for a man in a carriage to see obstacles of that description on the. ground.
H. Baker testifies that he was driving not over five miles an
Counsel for the defendants cite a strong line of cases, in which our own and other courts have held city ordinances of this and like character as binding on all who have actual or constructive notice of their existence, and as having the force of statute law within the limits to which they apply, and also cases in which it appears to have been held, with more or less distinctness, that a party seeking a remedy in damages against a town or city, or other corporation charged with the maintenance of a way or bridge, is not entitled to recover, if at the time of the accident the party plaintiff was violating a law of which he was bound to take notice.
But in all this latter class of cases it will be seen, upon examination, that the wrongful act of the plaintiffs either was, or was assumed to be, in some manner or degree contributory to the. production of the injury complained of, so that the precise question here presented was not under consideration in any of them. They cannot be deemed authorities adverse to the instruction here given if the point was not raised or considered. Thus, in Heland v. Lowell, 3 Allen, 407, it seems to have been taken for granted on all hands that the plaintiff’s want of care, evinced in the violation of the city ordinance, was one of the efficient causes of the accident. There may have been something in the evidence which made it certain that it was so, in which case it would be useless to raise or discuss the question which we are to pass upon. At all events the point was not taken, and the questions presented to the
It is very clear that the court could not have meant that a concurrence merely in point of time between a breach of law by the plaintiff and the accident, would bar the right of the plaintiff to recover, because they had just said in Alger v. Lowell, 3 Allen, 406, that “ intoxicated persons are not removed from all protection of law; the plaintiff was bound to show that he was in the exercise of due care, and the jury were so instructed: if he used such care by himself or others, his intoxication had nothing to do with the accident; the city may be liable under some circumstances for an injury sustained by . . . an intoxicated person, if the condition of the injured person does not contribute in any degree to occasion the injury.” Now intoxication in the streets is a misdemeanor upon which a penalty is imposed by law as distinctly as it is by the
The defendants’ 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 to disregard the distinction implied 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 traveling on runners without bells, in contravention of the statute, or that he was smoking a cigar in the streets in violation of a municipal ordinance, while it might subject the offender to a penalty, will not excuse the town for a neglect to make its ways safe and convenient for travelers, if the commission of the plaintiff’s offense did not in any degree contribute to produce the injury of which he complains.
The soundness of the distinction recognized by the presiding
We think the answers to these questions must demonstrate the injustice of making such a test decisive of the plaintiff’s right to recover.
The true question was (on this part of the case), whether he was using due and reasonable care under all the circumstances, or whether a want of such care on his part contributed to produce the injury. We have no reason to doubt that this question was submitted to the jury in a manner calculated to give to the testimony
In each case the entry must be,
Motion and exceptions overruled.