186 N.Y. 139 | NY | 1906
This action was brought to recover damages for personal injuries suffered by the plaintiff by being struck by an automobile while witnessing a speed test or race of the machines in a public highway in the borough of Richmond, city of New York. The highway, which was in an outlying part of the city and known as the Southside boulevard, had been used as a resort for fast driving for a number of years. The race or speed contest was conducted by sending the automobiles, one at a time, over a measured distance on the highway. It was held under the assumed authority of the following resolution adopted by the *144 board of aldermen: "Resolved, That upon the recommendation of the Local Board, First District, Borough of Richmond, permission be and the same hereby is given to the Automobile Club of America to conduct speed trials for automobiles on the Southside Boulevard, in the Fourth Ward of the Borough of Richmond, on Saturday, May 31st, 1902, between the hours of 11 o'clock A.M. and 4 o'clock P.M., or in case the day be stormy, on the first clear week day thereafter between the same hours, and that during said hours on said day a speed of greater than eight miles per hour may be attained, to which end any and all ordinances regulating the speed of vehicles is hereby suspended, such suspension to continue, however, only for the day and place on which the privilege herein mentioned and conveyed is exercised; and provided, further, that the said Automobile Club of America furnish all proper police protection over that part of the Southside Boulevard over which the said trials are to be conducted." The plaintiff was present as a spectator. She came from her residence about five miles away in company with her husband and others, as she said, "to see the races." She first witnessed the race from the highway, but finding a better view could be obtained, she passed from the highway into an adjacent clump of woods and there remained. Many automobiles went over the course without mishap. Finally, one machine, moving at the rate of about a mile a minute, by some mischance was deflected from the road into the woods and struck and injured the plaintiff. At the conclusion of the evidence the learned trial judge, over the objection and exception of the several defendants, directed a verdict against them all on the ground that the speed contest was unlawful and a nuisance, and submitted to the jury only the question of damages. That judgment has been affirmed by the Appellate Division, and from the judgment of the Appellate Division this appeal is taken.
It may be conceded that the action of the city in authorizing the use of a public highway as a racecourse for automobiles competing against time was illegal, and that the act of *145
the other defendants in holding the race under that permission was equally illegal. Under the law, at the time of this accident, any person driving or operating an automobile or motor vehicle upon any highway within any city or incorporated village at a greater rate of speed than eight miles an hour, "except where a greater rate of speed is permitted by the ordinance of the city," was guilty of a misdemeanor. (Laws 1902, ch. 266.) The special ordinance under which the race took place was passed by the common council on April 15th, 1902. That this ordinance, which did not assume to authorize the operation of automobiles generally at a greater rate than that prescribed in the statute, and permitted only certain specified persons to use the highway as a racecourse on a particular occasion, was not only invalid as a regulation of the speed of automobiles, but also operated as a participation by the city in the commission of the unlawful act, is settled by the recent decision of this court in Landau v.City of New York (
But granting that the action of the defendants in the use of the highway was illegal, the question remains, was it illegal against the plaintiff so as to render the parties participating therein liable to her solely by reason of the illegality of their acts and regardless of any element of negligence or other misconduct. If the plaintiff had been a traveler on the highway *147
when she met with injury a very different question would be presented. Highways are constructed for public travel, and, as already said, the acts of the defendants were doubtless an illegal interference with the rights of the traveler. It may well be that for an injury to the traveler, or to the occupants of the lands adjacent to the highway, or even to a person who visited the scene of the race for the purpose of getting evidence against the defendants and prosecuting them for their unlawful acts, the defendants would have been absolutely liable regardless of the skill or care exercised. But the plaintiff was in no such situation. She was not even a casual spectator whose attention was drawn to the race while she was traveling in the vicinity. She went from her home, a distance of five miles from the scene of the race, expressly to witness it and to enjoy the pleasure that the contest offered. As to the elements which made the contest illegal she was aware of their existence. She knew it was to take place on a highway, and she knew it was to be a contest for speed, and that, therefore, the automobiles would be driven at the greatest speed of which they were capable. The learned Appellate Division has said: "It is possible that a different view might be taken had it appeared that the plaintiff knew or had any reason to know of the unlawful nature of the contest. There is, however, nothing in the case tending to indicate that she was aware that they were not being conducted under the operation and sanction of a general ordinance or by virtue of a legal and valid permit." It is entirely possible that as a matter of fact the plaintiff did not know that the race on the highway was illegal, but it was illegal not from any want of permit, but because there was no statutory power to grant a permit to use the highway for a private purpose. The plaintiff, like every other person, is chargeable with knowledge of law, however ignorant in fact she may have been of it. But it is equally probable that the defendants thought that the race was legal. No distinction can be drawn between the parties in this respect. We are at a loss, moreover, to see how the legality or illegality of the race affected a person in the *148
condition of the plaintiff. The danger she would encounter in witnessing the race would be exactly the same had there been a statute of the state which expressly authorized it. It does not lie in the mouth of the plaintiff to assert as a ground of liability the illegality of an act from which she sought to draw pleasure and enjoyment. It may be assumed that her mere presence at the race was not sufficient participation therein to render her liable to prosecution as one of the maintainors or abettors of the nuisance (Cooley on Torts, p. 127), though in the case of a prizefight, at common law, all spectators were equally guilty with the combatants of a breach of the peace. (Rex v.Perkins, 4 C. P. 537; R. v. Murphy, 6 C. P. 103; R. v. Young, 8 C. P. 645.) The general maxim, injuria non fitvolenti applies, and one cannot be heard to complain of an act in which he has participated, if not so far as to render him liable as a party to the offense or tort, at least to the extent of witnessing, encouraging it and seeking pleasure and enjoyment therefrom. Illustrations of this principle may readily be found. It is a misdemeanor to conduct a horse race within a mile of court when the court is in session; also to give a theatrical or operatic exhibition on Sunday. It seems to me absurd that persons obtaining admission and attending the prohibited race or opera and meeting injury there shall successfully assert the illegality of the exhibition as a ground for recovery. It might with just as much force be contended that the presence of the person injured at the illegal exhibition or spectacle precluded him from recovery against the parties by whose negligence or tort the injury had been occasioned. Such is the law in some jurisdictions, but not so in this state. In Platz v. City ofCohoes (
The view which we entertain is in accord with the law in the state of Massachusetts. In Scanlon v. Wedger (
The learned counsel for the respondent has argued at length that the character of the road, the curve in it, the nature of its pavement and similar matters rendered it dangerous and improper to conduct a contest by automobiles, and that considering the number of persons naturally attracted to such a spectacle the contest was so dangerous as to constitute a public nuisance within the definition of the Penal Code. (Penal Code, § 385, sub. 4.) Whether the contest as conducted was in fact a nuisance, whether the defendants, or any of them, were guilty of negligence in the management of the race and the contributory negligence, if any, on the part of the plaintiff, were all questions of fact which the trial court should have submitted to the jury for determination. (McDonald v. Met. St. Ry. Co.,
For these reasons the judgment of the courts below must be reversed and a new trial had, costs to abide the event.
EDWARD T. BARTLETT, HAIGHT, HISCOCK and CHASE, JJ., concur; GRAY and O'BRIEN, JJ., absent.
Judgment reversed, etc.