89 N.Y. 219 | NY | 1882
The defendant made an excavation in one of its public streets, and neither removing or leveling the earth taken therefrom, left it in the way. While the respondent was riding with her husband, the carriage in which they were was, without carelessness on the part of either, upset by the pile of earth, and she was injured. That the street was defective through the culpable omission of duty on the part of the defendant is not denied, but the accident happened on Sunday, and the learned counsel for the appellant claims that it owed no duty to the plaintiff to keep its streets in repair on that day, because it did not appear that she was then traveling "either from necessity or charity," nor for any purpose permitted by the law. It is plain, therefore, that she was violating the statute relating to the "observance of Sunday" (1 R.S. 628, title 8, chap. 20, art. 8, § 70), but we do not perceive how that fact relieves the defendant.
It imposed an obligation upon the plaintiff to refrain from traveling, and for its violation prescribed a forfeiture of one dollar. It also declares that upon complaint made before a magistrate, and conviction had, that sum might be collected by distress and sale of the goods and chattels of the offender, or if sufficient could not be found, she might be "committed to the common jail for not less than one or more than three days." The statute goes no further, and we are aware of no principle upon which *222
it can be held that the right to maintain an action in respect of special damage resulting from the omission of a defendant to perform a public duty is taken away because the person injured was at the time disobeying a positive law. The courts are required to construe a penal statute strictly, and having before him, for judgment, an alleged violation of the Sunday law, Lord MANSFIELD said: "If the act of Parliament gives authority to levy but one penalty, there is an end of the question, for there is no penalty at common law." (Crepps v. Durden, 2 Cowper, 640.) This was a proceeding to enforce the statute, but in Carroll v.Staten Island R.R. Co. (
The Sunday law received a similar construction in Phila., Wil. Balt. R.R. Co. v. Phil. Havre de Grace Steam Towboat Co. (23 How. U.S. Sup. Ct. Rep. 209), the court holding that the offender, the plaintiff in the action, was liable to the fine or penalty imposed thereby, and nothing more, saying, "We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of $7,000, on the libelants, by way of set-off, because their servants may have been subject to a penalty of twenty-shillings each for breach of the statute." To the same effect is Baldwin
v. Barney (
It may indeed be said that if the plaintiff had obeyed the law, remained at home, and not traveled, the accident would not have happened. That is not enough. The same obedience to the law would have saved the plaintiffs in the cases just cited. It must appear that the disobedience contributed to the accident, or that the statute created a right in the defendant, which it could enforce. But the object of the statute is the *223 promotion of public order, and not the advantage of individuals. The traveler is not declared to be a trespasser upon the street, nor was the defendant appointed to close it against her. In such an action the fault which prevents a recovery is one which directly contributes to the accident; as carelessness in driving, either a vicious or unmanageable horse, or at an improper rate of speed, or without observation of the road, or in an insufficient vehicle, or with a defective harness, or in a state of intoxication, or under some other condition of driver, horse or carriage, which may be seen to have brought about the injury.
It may doubtless be said that if the plaintiff had not traveled, she would not have been injured; and this will apply to nearly every case of collision or personal injury from the negligence or willful act of another. Had the injured party not been present he would not have been hurt. But the act of travel is not one which usually results in injury. It, therefore, cannot be regarded as the immediate cause of the accident, and of such only the law takes notice. At common law the act was not unlawful, and the plaintiff was still under its protection, and may resort to it against a wrong-doer by whose act she was injured. This has been held in many cases where the person injured was at the time doing an act prohibited by the city ordinance or general statute (Steele v. Burkhardt,
Sutton v. The Town of Wauwatosa (
There are, as the counsel for the appellant contends, authorities the other way. Decisions by very eminent and learned courts. In Vermont. (Johnson v. Town of Irasburgh,
This result disposes of the appellant's objections, for they all rest on the assumption that as one could not lawfully travel on *225 Sunday, there was negligence either of the plaintiff or her husband, and if of the latter, that it was to be imputed to her. It is indeed suggested by the learned counsel for the appellant, that before the accident the husband "had been drinking," and "at the time of the accident was driving a fast horse recklessly." But if it is intended to present this view as ground for reversal it is not tenable, for neither at the close of the plaintiff's case, nor at the end of the testimony when a dismissal of the complaint was asked for, was this subject alluded to. I have, moreover, carefully examined the evidence referred to, and find none which would warrant the defense, or permit a jury to find upon the affirmative of such a proposition. The husband had indeed "drank beer," but the quantity is not stated, nor does it seem to have affected him. Asked by the defendant's counsel, "had you drank any beer on that day?" answers: "Yes, sir." "Who did you drink with?" answers, "Mr. Webber." And as for the rate of speed at which he was driving, he says: "at an ordinary slow jog, just off a walk." and we are referred to no evidence which shows the contrary.
It is not necessary to consider whether, if a different condition had been established, the negligence of the husband in those respects could have been imputed to the wife. The defense relied upon, was the Sunday law, and as it is not available, the judgment appealed from should be affirmed with costs.
All concur, except FINCH, J., taking no part, and TRACY, J., absent.
Judgment affirmed.
