133 N.W. 548 | N.D. | 1911
This is an appeal from an order of the district court of Ward county, sustaining plaintiff’s demurrer to tbe answer of the defendant. Plaintiff seeks to recover damages for personal injuries sustáined by him as the result of an explosion of a mixture of kerosene- and gasolene which he purchased of the defendant as and for kerosene oil. Plaintiff relies for a recovery upon § 2223 of the Revised Codes of this state, which reads as follows: “Whoever shall knowingly use, sell, or cause to be sold unlawfully any of the illuminating oils specified in this article which are below 105 degrees Fahrenheit, as tested by the-official tests herein prescribed, shall be liable to any person purchasing-such oil or to any person injured thereby for any damage to person or property arising from any explosion thereof.” In other words, plaintiff bases his cause of action upon the statutory liability of defendant under the above section. The answer pleads a former adjudication. By such plea defendant alleges that the former action was instituted for the recovery of damages for the same injuries resulting from the same explosion, and that such explosion was caused by defendant’s negligence in selling to plaintiff as and for kerosene oil a mixture of kerosene and: gasolene; such cause of action being based upon the alleged common-law liability of defendant. By such plea it is also alleged that the issues in such former action, including that of contributory negligence on plaintiff’s part, were duly considered and adjudicated and finally decided in defendant’s favor, and judgment was finally entered, dismissing plaintiff’s action.
The ground of demurrer to the above answer is that it does not state facts sufficient to constitute a defense to plaintiff’s cause of action. Respondent’s counsel advance two propositions of law in support of the action of the trial court in sustaining their demurrer: First, that the cause of action upon which the plaintiff seeks a recovery in this case is different and distinct from that set up in the case which appellant has
In support of their contention, counsel for plaintiff rely chiefly on a line of authorities under statutes making railroad companies liable for injuries to stock where they have neglected to fence or otherwise protect their right of way; and authorities under so-called “factory acts .and also under statutes requiring owners of mines to take certain precaution for the protection of miners. Among the authorities thus relied on are the following: Corwin v. New York & E. R. Co. 13 N. Y. 42; Harwood v. Bennington & R. R. Co. 67 Vt. 664, 32 Atl. 721; Congdon v. Central Vermont R. Co. 56 Vt. 390, 48 Am. Rep. 793; Jensen v. South Dakota C. R. Co. 25 S. D. 506, 35 L.R.A. (N.S.) 1015, 127 N. W. 650; Flint & P. M. R. Co. v. Lull, 28 Mich. 510; Welty v. Indianapolis & V. R. Co. 105 Ind. 55, 4 N. E. 410; Chicago, St. L. & P. R. Co. v. Fenn, 3 Ind. App. 250, 29 N. E. 790; Carterville Coal Co. v. Abbott, 181 Ill. 495, 55 N. E. 131; Caspar v. Lewin, 82 Kan. 604, — L.R.A. (N.S.) —, 109 Pac. 657; Atchison, T. & S. F. R. Co. v. Paxton, 75
There are a great many authorities holding to the same effect, and1 they are collated in the valuable note to the case of Wolf v. Smith, 9 L.R.A. (N.S.) 338. An examination of the opinions in most, if not all, of' these cases will disclose, however, that the plaintiff’s negligence was remote rather than proximate to the injury; and it is nowhere held that: the railway company is liable where the owner of the stock killed or injured wilfully or recklessly drove his stock upon the track. As said by Taft, Ch. J., in Kilpatrick v. Grand Trunk R. Co. 72 Vt. 263, 82 Am. St. Rep. 939, 47 Atl. 827: “These cases can well be put upon the-ground that the negligence of the plaintiff in permitting his animals: to escape, stray away, and pass upon the railroad track was remote, andi not proximate. If the negligence of the plaintiff consisted in his negligently driving cattle upon the track, at the time of the accident, it might well be claimed that such negligence was proximate, not remote, and that his neglect 'would bar a recovery. When the negligence of the plaintiff' did not occur at the time of the accident, but was prior thereto, and', consisted in permitting his animals to stray away, it is not mutual with, that of the defendant, and was not one of the proximate causes of the-accident; for, in the use of the words 'proximate cause,’ negligence occurring at the time the injury happened is meant. The case, in principle, is analogous to the one which formerly arose under the provisions, of our early statutes, which enacted that 'if any special damage shall' happen to any person, his team, carriage, or other property, by means: of the insufficiency or want of repairs of any highway or bridge in any town, which such town is liable to keep in repair, the person sustaining-such damage shall have the right to recover the same,’ etc. In these cases it has been universally held that if the plaintiff is guilty of contributory negligence, as one of the proximate causes of the accident, if his. negligence contributes to his injury to any extent, he is not entitled to-recover. But in such highway cases it was held that when the plaintiff’s-negligence consisted in talcing a road constructed to avoid the dangerous-place, which caused the accident, the plaintiff was not barred from a re
It is no doubt true, as contended for by respondent’s counsel and as-held in many of the authorities, that statutes similar to the one under-' consideration in the ease at bar were enacted in the legitimate exercise of the police power and are penal in their nature, being designed for the protection of the -public against injuries to persons and property, and are highly beneficial and should be strictly enforced. It. does not follow from this, however, that a person who violates the statute-is civilly liable for all damages occasioned by an explosion of the oil under all circumstances. We are here confronted with á question of statutory construction. Did the legislature intend by the statute in question, to impose on a person who has sold oil in violation of the statute, an absolute liability, regardless of whether such violation had, in fact, anything directly to do with causing the explosion ? It seems to us that it, would be a forced construction of the statute to say that the legislature, intended to create a liability for an explosion, the direct or proximate cause of which was plaintiff’s wilful,' reckless, or gross negligence. No-authority has been called to our attention permitting a recovery under a. like statute where the plaintiff thus caused the injury. Yet, if respondent’s contention be sound, that the legislature, by this statute, created an absolute liability, it would logically follow that, in an action to recover under such statute, a plaintiff’s wilful or gross negligence, which alone was the immediate and efficient cause of an explosion, would be no-defense.
After a careful consideration of the matter, we are forced to hold that contributory negligence on plaintiff’s part directly causing the explosion bars a recovery. Hence the ruling complained of was erroneous. We-deem it well settled that, while a violation of a statutory duty may con-, stitute negligence per se and actionable in case of resultant injury, yet statutes imposing such duties do not abrogate the defense of contributory negligence, unless the legislative intention so to do is clearly evinced in such statute. Such is the rule recently announced by the Minnesota court in Schutt v. Adair, 99 Minn. 7, 108 N. W. 811. It was there-said regarding the violation of a statute requiring elevator shafts to be-guarded and protected: “Though the violation of a statutory duty may constitute negligence per se, and actionable if injury result therefrom.,
We have a statute (Eev. Codes § 4295) requiring railway companies do give certain signals on approaching public crossings, and providing a penalty for neglect to comply therewith, and also prescribing that such companies shall be liable for all damages which shall be sustained by any person by reason of such neglect; but it has never been contended that the contributory negligence of the person injured at such a crossing will not bar his recovery. On the contrary, such defense is recognized by all courts. Hollinshead v. Minneapolis, St. P. & S. Ste. M. R. Co. 20 N. D. 642, 127 N. W. 993, and cases cited in note. See also Mankey v. Chicago, M. & St. P. R. Co. 14 S. D. 468, 85 N. W. 1013, holding that before a recovery can be had under said statute it must be shown that the failure of defendant to give the statutory signals was the proximate ■cause of the plaintiff’s damage.
Our views also find support in the following authorities: Meyer v. King, 72 Miss. 1, 35 L.R.A. 474, 16 So. 245; Reynolds v. Hindman, 32 Iowa, 146; Dodge v. Burlington, C. R. & M. River R. Co. 34 Iowa, 276. See note in 9 L.R.A. (N.S.) 339 and 342, and cases therein cited; Curtis v. St. Louis & S. F. R. Co. 96 Ark. 394, 34 L.R.A. (N.S.) 466, 131 S. W. 947, Ann. Cas. 1912, B. 685; Dumphy v. New York, N. H. & H. R. Co. 196 Mass. 471, 13 L.R.A. (N.S.) 1152, 82 N. E. 675; Queen v. Dayton Coal & I. Co. 95 Tenn. 458, 30 L.R.A. 82, 49 Am. St. Rep. 935, 32 S. W. 460; 29 Cyc. 436, 437, 508; 21 Am. & Eng. Enc. Law, 483; Quimby v. Woodbury, 63 N. H. 370; Bush v. Wathen, 104 Ky. 548, 47 S. W. 599; 1 White, Personal Injuries on Railroads, § 404, and case cited; 1 Thomp. Neg. §§ 10, 834.
Having reached the above conclusion, it becomes necessary to notice the other question.
The order appealed from is reversed, and the cause remanded for further proceedings.