| Me. | Jul 16, 1917
Lead Opinion
These two actions were brought against the defendant town under R. S., (1903) Chap. 23, Sec. 76, to recover damages
On the day of the accident, July 22, 1913, one John H. McCarthy was riding in his automobile and was sitting on the front seat beside the chauffeur. On the rear seat were the two little girls, his grandnieces. When the automobile reached the bridge, one of the forward wheels, according to the declaration in the writs, struck a raised plank, thereby deflecting the machine from its course and turning it against the railing which proved to be weak and unable to withstand the impact. The automobile with its occupants was precipitated into the river. Mr. McCarthy was rescued but the children were drowned. The automobile was not registered in the name of the owner, and this fact is the pivotal point in the case.
Suit was brought by Mr. McCarthy in his own behalf against the town to recover damages for injuries to himself and his property, and judgment was rendered for the defendant on the ground that as the automobile was not registered in the owner’s name he was prohibited from using it on the highway and the town owed him no duty to keep the way safe and convenient for him to travel upon. McCarthy v. Leeds, 115 Maine, 134.
The two suits at bar were subsequently brought by John H. McCarthy, Jr., as administrator of the estates of the two children, the plaintiff claiming that these two passengers have a right of action against the town even if the owner did not. In our opinion they, as well as the owner, are barred from recovery.
It must be distinctly borne in mind that this is not a common law action of negligence against an individual or a corporation, but a statutory remedy against a municipality, and the rights of the traveling public and the liability of the municipality are limited by the scope of the statute. Independent of statute there is no liability whatever on the part of municipalities for injuries caused by defective highways. The liability is a creature of the statute, Haines v. Lewiston, 84 Maine, 18; Colby v. Pittsfield, 113 Maine, 507, and it does not extend beyond the express provisions. Peck v. Ellsworth, 36 Maine, 393.
What then is the measure of that liability? It is this, “Highways, town ways and streets legally established, shall be opened and kept
Further, in order to be within the protection of the statute, one must be a lawful traveler. One who is traveling in defiance of a statutory prohibition is unlawfully upon the highway. Take for instance traveling on Sunday, prior to the passage of Chapter 129 of the Public Laws of 1895. This court repeatedly decided that when a person received an injury through a defect in the highway while he was traveling on the Lord’s Day, except in case of necessity or charity, he could not recover. Bryant v. Biddeford, 39 Maine, 193; Hinckley v. Penobscot, 42 Maine, 89; Cratty v. Bangor, 57 Maine, 423. The Maine rule as to non-recovery in such cases was also the rule in Massachusetts. Bosworth v. Swansey, 10 Met., 363; Jones v. Andover, 10 Allen, 18; Connolly v. Boston, 117 Mass., 64" court="Mass." date_filed="1875-01-15" href="https://app.midpage.ai/document/connolly-v-city-of-boston-6417978?utm_source=webapp" opinion_id="6417978">117 Mass., 64; Davis v. Somerville, 128 Mass., 594" court="Mass." date_filed="1880-06-30" href="https://app.midpage.ai/document/davis-v-city-of-somerville-6419953?utm_source=webapp" opinion_id="6419953">128 Mass., 594; and in Vermont, Johnson v. Irasburgh, 47 Vt., 28" court="Vt." date_filed="1874-08-15" href="https://app.midpage.ai/document/johnson-v-town-of-irasburgh-6579991?utm_source=webapp" opinion_id="6579991">47 Vt., 28. In this Vermont case the ground on which the rule rests is clearly set forth. New Hampshire held the contrary Sewell v. Webster, 59 N. H., 586.
Precisely the same principle is involved in the case at bar where the intestates were traveling in an unregistered automobile. Such a vehicle is proscribed. Public Laws 1911, Chap. 162, Sec. 11, (R. S., 1916, Chap. 26, Sec. 28) reads: “No motor vehicle of any kind shall be operated by a resident of this State upon any highway, town way, public street, avenue, driveway, park or parkway unless registered as provided in this chapter” etc. The Legislature had the power and
But the learned counsel for the plaintiff urges that even if Mr. McCarthy senior, the owner of the car, cannot recover, the ban does not prevail against the children who were merely passengers. He discusses the lack of contributory negligence on their part and what is true, that the doctrine of imputed negligence does not obtain in this State. But neither of these questions is involved here. The question of contributory negligence as related to the non-registration is beside the mark. It is not a question of age or intelligence or knowledge or intention on the part of the occupants. It is a question of fact. It is a matter purely of statutory prohibition. All the occupants are u'nder the same disability. The very logic of the situation prevents any discrimination between them. The statute does not relieve the town from keeping its streets in repair merely for the owner of an unregistered auto and those who know the situation, and impose that duty upon it as to those passengers who have no such knowledge. Nor does the absence of the doctrine of imputed negligence aid the plaintiff. Our decision is not based on the doctrine of negligence, as we have already stated. It is based wholly upon the statutory “thou shalt not.”
To illustrate: It is conceded that the right to use the highways of the State is not absolute and that the Legislature has the right to limit and control their use whenever, in the exercise of the police
In 1909 the prohibition was extended territorially to all the ways and streets in the towns of Eden, Mount Desert, Tremont and Southwest Harbor on the island of Mount Desert. Private and Special Laws 1909, Chapter 133. This act was also held constitutional. State v. Phillips, 107 Maine, 249. Suppose an automobile, in defiance of those statutes, had been operated in the forbidden district, and one or more of the occupants had been injured through some defect in the highway. Could it with reason be claimed that any liability whatever rested upon the municipality within which the accident happened, or that it made any difference whether the injured party was the owner or the chauffeur or the passenger, and whether such passenger knew of the non-registration or not? Certainly not. Those towns were freed from all responsibility when the prohibition was placed upon this kind of traffic.
Now instead of prohibiting all automobiles from using certain streets and ways, the Legislature has seen fit to debar all unregistered automobiles owned by residents from using any of the streets and ways throughout the State. Figuratively speaking, signs are erected on every highway, after the pattern of the Eden act, bearing the inscription “No unregistered automobiles are allowed on this road.” Whenever that sign is disregarded the occupants travel at their peril.
The non-liability to passengers as well as to owner has been settled in Massachusetts. In Feeley v. Melrose, 205 Mass., 329" court="Mass." date_filed="1910-02-25" href="https://app.midpage.ai/document/feeley-v-city-of-melrose-6431006?utm_source=webapp" opinion_id="6431006">205 Mass., 329, three suits were brought against the defendant city, one by the owner and two by female passengers in an unregistered car. On this point the opinion holds, ‘ ‘If the automobile, in which the female plaintiffs were riding, was not registered according to the requirements of law, it was unlawfully upon the way; those who were using it were not travelers but trespassers; and it would follow, that they could not maintain
Our conclusion therefore is that these actions cannot be maintained. If the present statute is too drastic the remedy should come by legislative amendment.
Judgment for defendants in each case.
Dissenting Opinion
Dissenting.
That those innocent of an intentional wrong should be held trespassers on the highways established for the benefit of the public does not seem reasonable. A machine may be operated contrary to the provisions of the statute, but why must all passengers therein.be classed as outlaws? New violations of statutory prohibitions entail such drastic punishment. A sleigh without bells, a carriage without lights, a wagon with narrow tires, if forbidden, should be in the same class; but must we hold all in such vehicles trespassers and therefore without protection from defective highways or the negligence of other travelers? If certain appliances were required by law on trolley-cars would we hold all passengers in an offending trolley as trespassers?
Massachusetts, which is one of the few States holding as Maine does, applies a different rule to the unlicensed chauffeur than to the unregistered car. Can we say a machine in perfect condition unregistered, but driven by a licensed driver, is more dangerous than a registered car driven by a man Whose license has been revoked for reckless driving? Under the rule adopted in the majority opinion at our peril we accept a ride with a friend, or enter a public bus. The women and children in the sight-seeing cars in the cities, and public cars running from town to town, may be without remedy in case of injury. License-plates are no indication of compliance with the law. They frequently are changed from car to car. Only by making sure that the maker’s number agrees with that on the State license is there