171 Ky. 725 | Ky. Ct. App. | 1916
Opinion op ti-ie Court by
Reversing.
Appellee was the owner of a passeng’er automobile truck, and at the time he sustained the injuries for which he sues in this case he was traveling* north from Bards-town to the Nelson County fair g’rounds, on the Louisville and Bardstown turnpike, and while passing the point where the Lancaster pike comes into the Louisville pike from the west, he claims that the appellant negligently and carelessly approached his automobile truck from the rear, and in passing it struck his machine, causing it to fall over into a ditch about ten inches deep running alongside the east edge of the pike upon which he was traveling, and causing same to careen and strike a post upon which was attached a mail box, which was located very near the ditch; that his right hand was caught between the side of the top of his machine and the post, causing his fingers and muscles' to be bruised and crushed, and, as he claims, resulted in permanently injuring and almost completely destroying that hand.
The negligence charged in the petition is that defendant negligently failed to have his automobile under control, and that he was operating same at a much greater rate of speed than was reasonable and proper, and more
The answer consists of three paragraphs, the first being a general, denial, including a denial of the collision itself, as well as the negligence complained of; the second is a plea of contributory negligence on behalf of the plaintiff, which contributory negligence, as therein specified, is that plaintiff was negligent'in the position which he was occupying on his machine at the time, it being that he was standing on the rear steps leading to the entrance of his machine, with one hand holding to the right corner of the top of his machine, and the left hand holding to the left corner thereof; that plaintiff’s machine was, because of its peculiar steering gear, hard and difficult to control, and that it was being operated at the time by an incompetent chauffeur. The third paragraph set up the fact that plaintiff’s machine had not been registered, as required by subsection 2 of section 2739 of the Kentucky statutes, nor had his chauffeur, who was at the time employed by him for compensation, been licensed, as required by subsections 19 and 20 of the same section, and that plaintiff had violated the provisions of subsection 24 of that section by employing an unlicensed chauffeur. A demurrer was filed to the third paragraph of the answer, and sustained by the court, to which an exception was reserved. The matters relied on in paragraphs two and three of the original answer were, in substance, incorporated into an amended answer, but all of its allegations with reference to plaintiff’s chauffeur not being licensed, or his machine registered, weie, upon motion of the plaintiff, stricken from the pleading, and exceptions reserved to this ruling of the court. A reply completed the pleadings, and upon trial before a jury -the plaintiff was awarded a verdict of $2,500.00, upon which judgment was rendered. Failing to obtain a new trial, defendant prosecutes this appeal.
The motion for a new trial contains fourteen objections to the judgment, but, as presented upon this appeal,
Defendant’s testimony showed that he was traveling at a rate of speed not exceeding fifteen miles per hour, and that he passed the plaintiff some two hundred and fifty feet south of the point where the Lancaster pike enters into the automobile pike, and that far south of the point where the Lancaster pike enters into the Louisville pike, and that far south of the point where plaintiff and his witnesses claim the collision occurred; that he did not at that place, or at the place where plaintiff claims that
Returning now to the grounds urged for a reversal: It is vigorously insisted that the plaintiff was operating a machine on the public highway when it was not registered, and had in his employ an unlicensed chauffeur, both of which were in open violation of the statutory law of this State, and that these violations made him a trespasser upon the highway, and himself and his machine, in the language of defendant’s counsel, “under the ban of the law” continuously while on the highway, and that these violations constituted negligence per se on his part, depriving him of any right of action for injury to himself or to his machine, and which violations constitute a complete defense to this suit. Strange as it may seem, we are furnished with authority for this cruel and almost savage doctrine. It seems that the courts of Massachusetts give to such violations the force and effect contended for by the defendant in this casé, and we are referred to the case of Chase v. N. Y. Central R. R. Co., 208 Mass. 137, as sustaining the doctrine contended for. In that case the plaintiff was riding in an unregistered automobile which collided with a train of the defendant, producing the injuries sued for, and a recovery was denied because the machine was unregistered. The court, in disposing- of the case, to the chagrin of the plaintiff and his counsel, says:
“Under the decisions, the operation of the unregistered automobile is deemed to be unlawful in every feature and aspect of it. Everything in the conduct of the operator that enters into the propulsion of the vehicle is under the ban of the law. In going along the way and entering upon the crossing the machine is an outlaw. The operator, in running it there, and thus bringing it into collision with the locomotive engine, is guilty of conduct which is permeated in every part by his disobedience of the law, and which directly contributes to the injury by bringing the machine into collision with the engine. He is within the words of the statute. He is in no better con
The same doctrine seems to be adhered to by that court in the case of Dudley v. Northampton St. Ry. Co., 23 L. R. A. (N. S.) 561; Dean v. Boston Elevated R. R. Co., 217 Mass. 495, it being held in the last-named case, in substance, that all occupants of the unregistered machine were trespassers upon .the highway, and are entitled to no consideration from other travelers except to be protected from reckless or wanton injury. "We have been unable to find any other court going to this extent, although some of them hold that under certain circumstances, and under the peculiar facts of the particular case, evidence of the machine being unregistered, or the chauffeur being unlicensed, may be introduced as evidence under the plea of contributory negligence, a question which we shall hereafter consider under the peculiar facts of this case. On the contrary, the courts of Minnesota, Alabama, Illinois, Pennsylvania, Florida, Kansas, Virginia, and perhaps others, do not give to such violations of the statute so broad and what might be called destructive effect as does the Massachusetts court. In Berry on Automobiles, second edition, section 195, the author in discussing the point under consideration with reference to the failure of the chauffeur to have obtained a license, says:
“And the operating of an automobile without a license, when one is required by law, is evidence of negligent operation, but does not affect the rights of such person, nor of those riding’ with him, as travelers, nor bar their right of action or defense in personal injury actions; such persons not being rendered thereby trespassers upon the highway. ’ ’
The case of Armstead v. Lounsberry, 56 L. R. A. (N. S.) 628, is a Minnesota case (129 Minn. 34), and is one growing out of a collision between two' automobiles going in opposite directions, which, in this particular, makes it unlike the one we have here, but this fact can have no bearing upon the question now under consideration, which is, whether a failure to comply with the law shall constitute a bar to the action. The plaintiff in that case had failed to register his machine, as required by the laws of Minnesota, and the defendant contended that he thereby
“The right of a person to maintain an action for a wrong committed upon him is not taken away because he was at the time of the injury disobeying a statute law which in no way contributed to his injury. He is not placed outside all protection of the law, nor does he forfeit all his civil rights, merely because he is committing a statutory misdemeanor. The wrong on the part of plaintiff which will preclude a recovery for an injury sustained by him must be some act or conduct having the relation to that injury of a cause to the effect produced by it. Sutton v. Wauwatosa, 29 Wis. 21, 9 Am. Rep. 534; Philadelphia W. & B. R. Co. v. Philadelphia & H. de G. Steam Towboat Co., 23 How. 209, 16 L. ed. 433. Plaintiff’s violation of the law, in order to affect his case, must, like any other act, ‘be a proximate cause in the same sense in which the defendant’s negligence must have been a proximate cause in order to give any right of action.’ 1 Shearm. & Redf. Neg. 94. A collateral unlawful act not contributing- to the injury will not bar a recovery. Hughes v. Atlanta Steel Co., 136 Ga. 511, 37 L. R. A. (N. S.) 547, 71 S. E. 728, Ann. Cas. 1912C, 394, L. N. C. C. A. 429.
“Plaintiff’s violation of law in this case is of this collateral character. There was no relation of cause and effect between the unlawful act and the collision. The registration of plaintiff’s automobile was of no consequence to defendant. The law providing for such registration was not for the prevention of collisions and had no tendency to prevent collisions. There is no pretense that the registration of plaintiff’s automobile would have had any tendency to prevent this collision. Plaintiff’s failure to obey the law in no way contributed to his injury, and
The court then proceeds to a consideration of the rule as announced in Massachusetts, and concludes by saying : “It appears to us the weight of argument, as well as the weight of authority, is against the rule of the Massachusetts cases, and in accordance with the rule we have above laid down. ’ ’ Without encumbering this opinion, it is sufficient to say that the opinions of the courts to which we have referred are in accord with the Minnesota court upon this subject, and were we content to rest our opinion alone upon the greater weight of authority, we would be compelled to disregard the rule as laid down in Massachusetts, and to adopt that prevailing in the other states. But, aside from the weight of authority, we would be unable to agree with the rule as announced in Massachusetts, as it evidently sounds a discordant note to our conceptions of the very basic principles of the law which we learn from the earliest writers are founded on reason and right. For the purposes of this case we do not have to decide whether the statute requiring the licensing of a chauffeur in this State, or the registering of machines is one of revenue, only, or one looking to the qualifications of the chauffeur and safety of the traveling public upon the highway, because if it should be regarded as partaking of both, or the latter alone, a violation of it does not render the violator an outlaw, nor deprive Mm of all consideration dictated by the plainest principles of humanity, nor can the fact that the statute has not been complied with in these respects affect his cause of action, unless such violation has some causal connection with the producing of the injury. In other words, the violations must be the proximate cause
Second. In considering this objection, it may be said that the evidence introduced by plaintiff complained of consisted chiefly in that testified to by witnesses to the effect that they had previously ridden in machines operated by the same chauffeur as was plaintiff’s machine at the time, and that they considered him to be a competent and careful chauffeur; and the further evidence that the defendant did not give any signal of the approach of his machine to the machine of the plaintiff at the time of the accident. The evidence offered by the defendant which was refused, and of which complaint is made, consists chiefly in declining to permit defendant to show that plaintiff’s machine was unregistered and his chauffeur was unlicensed. The testimony offered as to the competency of the chauffeur was improperly admitted. In the first place it is not shown that the witnesses were qualified to testify upon this subject, and in the second place, under the facts of this case, the competency or incompetency of the chauffeur can have no relevancy upon the only issue having to do with plaintiff’s liability, namely, the collision. If there was no collision, as he contends, there is no liability, it matters not how negligent the chauffeur may have been, or how careful he may have been. The only conceivable relevancy that such testimony could have in the case is to refute the idea of contributory negligence. But this plea is one which is predicated upon the idea that the defendant was negligent, and the latter cannot be negligent when he is not guilty of the act of which the plaintiff complains. If the injuries had been produced by an admitted collision, and there was a controversy as to which party was at fault, the competency or. incompetency of the chauffeur might throw some light upon the subject, and could be argued with some plausibility as being relevant under the plea of contributory negligence. It is entirely different, however, under facts such as we have here, where the collision itself is denied, and there is no pretense that any such alleged collision was produced
Third. Instruction number one given by the court, in enumerating the duties of the defendant while operating his automobile on the highway, and for a failure of which he should be found guilty of negligence, contained this: “And that it was the duty of the defendant not to' operate said automobile upon said highway at a greater rate of speed than twenty miles per hour at said time and place.” This was followed by the statement that if the jury believed that the defendant failed to exercise any of the duties (including the one quoted), and by reason thereof the collision occurred, then the jury should find for the plaintiff. It is insisted that the speed rate of twenty miles per hour should not be mentioned in the instruction. Subsection 9 of section 2739 of the statute, supra, mates it prima facie evidence of negligence to run an automobile exceeding fifteen miles an hour upon any of the highways of the State, where same passes through the residence portion of any incorporated city, town or village, and the same consequence attaches if the speed of the automobile exceds twenty miles an hour'outside of such incorporated town or village. Under the statute, if a collision should occur, the plaintiff would make out his case, after proving the fact of the collision, followed by the injury, by showing that the speed of defendant’s machine was more than fifteen miles an hour, if the collision occurred in the residence portion of an incorporated town or village, or that it was more than twenty miles an hour if the collision occurred upon a public highway outside of such towrn or village. The statute must have this effect if any at all. It will not do to say that the provisions of the statute as to the effects and consequences of a violation of the speed limits therein mentioned is evidentiary only, so as .to justify the submission of the case to the jury when those limits are exceeded, because it is the law every
“The jury were not advised by the instruction that they should find for appellee if they believed from the evidence the automobile was being operated at a greater rate of speed than fifteen miles an hour, but that as a matter of law it should not have been run at a greater speed than fifteen miles an hour. The meaning of the instruction as a whole was that the speed of the automobile, whether greater or less than fifteen miles an hour, was to be considered by the jury in connection with the other evidence in the case, in determining whether it was operated by appellants with reasonable care, having regard for the traffic and use of the street and its
The instruction now being considered is really more favorable to the defendant than the law or the facts justified. In the way it is framed, it not only cast upon the plaintiff the burden to show that the speed exceeded twenty miles per hour, but also the burden on him to show that such excessive speed was the proximate cause of the collision, when as we have seen, he made a prima facie case when he proved the speed to exceed the statutory limit. Upon another trial the court should omit the clause quoted above from the body of the instruction, and the following should be inserted at the end: “And the jury are further instructed that it was the duty of the defendant not to operate said automobile upon said highway at a greater rate of speed than twenty miles per hour at said time and place, and if the jury should believe from the evidence that the plaintiff did operate his machine on such highway at said time and place at a speed greater than twenty miles per hour, and should further believe that his machine collided with that of plaintiff, then the law is for the plaintiff and the jury should so find, unless the jury should further believe from the evidence that such rate of speed was not the proximate cause of the plaintiff’s injuries.”
Instruction number four is one permitting punitive damages, which we do not think the evidence authorizes, as the negligence of the defendant, if any, is not of the gross or reckless character justifying’ the recovery of punitive damages. National Casket Co. v. Powar, 137 Ky. 156. In that case the facts necessary to be shown to entitle the plaintiff to recover punitive damages are well stated as follows: “It is not every case of gross negligence that warrants the infliction of punitive damages. McHenry Coal Co. v. Sneddon, 98 Ky. 688, 34 S. W. 228, 17 Ky. Law Rep. 1261. It is only where the negligence manifests a wanton disregard of the lives or safety of others, or is wilful or malicious, that such recovery is allowed. L. & N. R. R. Co. v. Kingman, 35 S. W. 264; 18 Ky. Law Rep. 83; Lexington Ry. Co. v. Fain, 80 S. W. 463, 25 Ky. Law Rep. 2245; Southern Ry. Co. v. Goddard, 121 Ky. 567, 89 S. W. 675, 28 Ky. Law Rep. 527.” It was, therefore, error to give this instruction to the jury.
Instruction six submits to the jury the question as to whether the plaintiff had his automobile truck provided and equipped with brakes, steering gear, etc., and also as to the competency of the chauffeur, and the fact as to plaintiff riding upon the steps at the rear end of his machine, and whether these acts constituted contributory negligence, and authorized the jury to find for the defendant if they should conclude that the matters mentioned therein constitute such contributory negligence. For reasons hereinafter stated, we see no room for this instruction in this case.
In addition to what we have said, it is urgently insisted upon us that the fact of plaintiff riding upon the steps is not only contributory negligence, but such as to prevent recovery herein, and to have authorized a peremptory instruction for the defendant. The rule as to causal connection between the act complained of and the effect produced, to which we have hereinbefore adverted, has peculiar application here. It is perfectly manifest that the place where plaintiff was riding was altogether safe, and no injury would have happened to him if his car had not been overturned. His position is entirely unlike that of a passenger protruding- his arm, or some parts of his body, out from the car, and thereby sustaining injuries. In such a case it is the universal rule that such acts on the part of the passenger constitute such contributory negligence as to prevent a recovery in a suit between him and the railroad company, there being no negligent' act of the defendant shown; but it could hardly be contended that the passenger thus offending, if injured through a negligent collision, or be
Fourth. As to the alleged misconduct of counsel, we find nothing from the bill of exceptions, or in the record, pointing out to us what the alleged misconduct was. It is shown that during the trial, from some remarks made by plaintiff’s counsel, laughter was produced in the audience, and perhaps some whispering between some parties located within a comparatively short distance from the jury, but it is not shown what was said between the parties, much less that anything was said concerning the case, or that the jury heard even what was said; on the contrary, it is shown by the ones who are supposed to have engaged in the conversation, that nothing was said having a tendency to prejudice the jury, even if the remarks had been heard by it, and we see no merit in this contention.
For the errors indicated herein, the judgment is reversed with directions to grant a new trial, and for proceedings consistent with this opinion. .