29 Wis. 21 | Wis. | 1871
It is very clear that the plaintiff, in driving his cattle along the road and over the bridge, to a market, on Sunday, was at the time of the accident' in the act of violating the provisions of the statute of this state, which prohibits, under a penalty not exceeding two dollars for each offense, the doing of any manner of labor, business or work on that day, except only works of necessity or charity, R. S., c. 183, § 5. It was upon this ground the non-suit was directed by the court below, and the point thus presented, that the unlawful act of -the plaintiff was negligence, or a fault on his part contributing to
In the next case there was a little, and but a little, more effort at reasoning upon the point. The illustrations on page 20, of negligence in a railway company in omitting to ring the bell of the engine, or to sound the whistle at the crossing of a
The two other cases above cited were actions of tort by the owners, to recover damages from the bailees for injuries to personal property loaned and used on Sunday — horses loaned and immoderately driven on that day. They were decided against the plaintiffs, and chiefly on the ground of the unlawfulness of the act of loaning or letting on Sunday of the horses, to be driven on that day in violation of the statute, which the plaintiffs themselves were obliged to show, and the doctrine of par delictum was applied. It was in substance held in each case that the plaintiff, by the first wrong committed by him, had placed himself in pari delicto with the defendant, with respect to the subsequent and distinct wrong committed by the latter,
In direct opposition to tbe above decisions are tbe numerous cases decided by tbe courts of other states, tbe supreme court of tbe United States, and tbe courts of Great Britain, which have been so diligently collected and ably and forcibly presented in tbe brief of tbe learned counsel for tbe present plaintiff. Of tbe cases thus cited, with some others, we make particular note of tbe following: Woodman v. Hubbard, 5 Foster, 67; Mohney v. Cook, 26 Penn., 342; Norris v. Litchfield, 35 N. H., 271; Corey v. Bath, ib., 530; Merritt v. Earle, 29 N.Y., 115; Bigelow v. Reed, 51 Maine, 325; Hamilton v. Goding, 55 id., 428; Baker v. The City of Portland, 58 ib., —; Kerwhacker v. Railway Co., 3 Ohio St., 172; Phila., etc., Railway Co. v. Phila., etc., Tow Boat Co., 23 How., (U. S.) 209; Bird v. Holbrook, 4 Bing., 628; Barnes v. Ward, 9 M. G. & S., 420.
It seems quite unnecessary, if indeed it were possible, to add any thing to tbe force or conclusiveness of tbe reasons assigned in some of these cases in support of tbe views taken and decisions made by tbe courts. Tbe cases may be summed up and tbe result stated generally to be tbe affirmance of two very just and plain principles of law as applicable to civil actions of this nature, namely : |first, that one party to the action, when called upon to answer for the consequences of bis own wrongful act done to tbe other, cannot allege or reply tbe separate or distinct wrongful act of tbe other, done not to himself nor to bis injury, and not necessarily connected with, or leading to, or causing or producing tbe wrongful act complained of; and, secondly, that tbe fault, want of due care or negligence on tbe part of tbe plaintiff, which will preclude a recovery for tbe injury complained of, as contributing to it, must'be some act or conduct of tbe plaintiff having tbe relation to that injury of a cause to tbe effect produced by it. Under tbe operation of tbe first principle, tbe defendant cannot exonerate himself or claim
In tbe cases of tbe horses let to be driven on Sunday, so far as tbe owners were obliged to resort to an action on tbe contract which was executory and illegal, of course there could be no recovery ; but to an action of tort, founded not on tbe contract, but on tbe tort or wrong subsequently committed by tbe defendant, the illegality of tbe contract furnished no defense, as is clearly demonstrated in Woodman v. Hubbard, and tbe cases there cited. Tbe decisions under tbe provision of tbe constitu-' tion of this state abolishing imprisonment for debt arising out of or founded on a contract express or implied, and some others
And as to tbe other principle that the act or conduct of tbe plaintiff, which can be imputed to him as a fault, want of due care or negligence on bis part contributing to tbe injury, must have some connection with tbe injury as cause to effect, tbis also seems almost too clear to require thought or elaboration. To make good tbe defense on tbis ground, it must appear that a relation existed between tbe act or violation of law on tbe part of tbe plaintiff, and tbe injury or accident of which be complains, and that relation must have been such as to have caused I or helped to cause tbe injury or accident, not in a remote or speculative sense, but in tbe natural and ordinary course of events las one event is known to precede or follow another. It must have been some act, omission or fault naturally and ordinarily] calculated to produce tbe injury, or from which tbe injury or 1 accident might naturally and reasonably have been anticipated under tbe circumstances. It is obvious that a violation of tbe > Sunday law is not of itself -an act, omission or fault of tbis kind, with reference to a defect in tbe highway or in a bridge over which a traveler may be passing, unlawfully though it may be. Tbe fact that tbe traveler may be violating tbis law of tbe state, has no natural or necessary tendency to cause tbe injury which may happen to him from tbe defect. All other conditions and circumstances remaining tbe same, tbe same accident or injury would have happened on any other day as well. Tbe same natural causes would have produced tbe same result on any other day, and tbe time of tbe accident or injury, as that it was on Sunday, is wholly immaterial so far as the. cause of it or tbe question of contributory negligence is concerned. In this respect it would be wholly immaterial also that tbe traveler was within tbe exceptions of tbe statute, and traveling on an errand of necessity or charity, and so was lawfully upon tbe highway.
“Tbecause of an event,” says AppletoN, C. J., in Moulton v. Sanford, 51 Maine, 134, “ is tbe sum total of tbe contingencies of every description, wbicb, being realized, tbe event invariably follows. It is rare, if ever, that tbe invariable sequence of events subsists between one antecedent and one consequent. Ordinarily that condition is usually termed the cause, whose share in tbe matter is the most conspicuous and is the most immediately preceding and proximate to the event.”
In tbe present case tbe weight of tbe same cattle, upon tbe same bridge, either tbe day before or tbe day after tbe event complained of, when tbe plaintiff would have been guilty of no violation of law in driving them, would most unquestionably have produced tbe same injurious result. And if, on that day even, tbe driving bad been a work of necessity or charity, as if tbe city of Milwaukee bad been in great part destroyed'by fire, as Chicago recently was, and great numbers of her inhabitants in a condition of helplessness and starvation, and the plaintiff hurrying up bis drove of beef cattle for their relief, no one doubts tbe same accident would then have happened, and tbe same injuries have ensued. Tbe law of gravitation would not then have been suspended, nor would tbe rotten and defective stringers have refused to give way under tbe superincumbent weight, precisely as they did do on tbe present occasion. There are many other violations of law, wbicb tbe traveller or other person passing along tbe highway may, at tbe time be receives an injury from a defect in it, be in tbe act of committing, and which are quite as closely connected with tbe injury, or tbe cause of it, as is tbe violation of which complaint is made against tbe present plaintiff. He may be engaged in cruelly beating or torturing bis horse, or ox, or other animal; be may be in tbe pursuit of game, with intent to kill or destroy it, at a season of tbe year when this is prohibited; be may be exposing game for sale, or have it in bis possession, when these are
All of these are acts prohibited by tbe same chapter or statute in which we find tbe prohibition from work and labor on Sunday, and some of them under tbe same, but most under a greater penalty than is prescribed for that offense, thus showing the character or degree of culpability which was variously attached to them in the opinion of the legislature. And there are many other minor offenses, mala prohibits, merely, created by statute, which might be in like manner committed. There are in Massachusetts, and doubtless in many of the states, statutes against blasphemy and profane cursing and swearing, the prevention of which seems to be equally if not more an object of solicitude and care on the part of the legislature, than the prevention of labor, travel or other secular pursuits on Sunday, because more severely punished. It has not yet transpired we believe, even in Massachusetts, that the action of any person to recover damages for an injury sustained by reason of defects in a highway, has been peremptorily dismissed because he was engaged at the time in profane cursing dr swearing, or because he was in a state of voluntary intoxication, likewise prohibited under penalty by statute.
It is obvious that the breaking down of a bridge from the rottenness of the timbers, or their inability to sustain the weight of the person or of his horses and carriage, could not be affected by either of these circumstances, and yet, on the principle of the decisions above referred to in that state, it is not easy to see why the action must not be dismissed. On principle there could be no discrimination between the cases, and it could make no difference in what the unlawful act of the plaintiff consisted at the time of receiving the injury. Ve must reject the doctrine of those cases entirely and adopt that
Strong analogy is afforded and much weight and force of reason bearing upon this question are found in some of the cases which have arisen upon life policies, and as to the meaning and effect to be given to the condition usually contained in them, exempting the company from liability in case the assured “ shall die in the known violation of any law,” etc., and it has been held that the violation must be such as is calculated to endanger life, by leading to acts of violence against, or to the bodily or personal injury or exposure of, the assured, and so to operate in producing his death in the connection of cause to effect. See opinions in Bradley v. Mutual Benefit Life Ins. Co., 44 N. Y.
In the case of Clemens v. Clemens, recently decided by this court, it became necessary to consider the same question, though
The other question presented on the motion for a nonsuit, and which the court below did not decide, but which has been argued here, is one of more doubt and difficulty to our minds. It is, whether the plaintiff was guilty of contributory negligence in permitting so many cattle to go upon the bridge at one time. To sustain the non-suit on this ground, it is necessary for us to look at the facts in the most favorable light possible for the plaintiff, in which the jury would have been at liberty to find them, and then to say that there was no evidence which would have justified a verdict in his favor, or such a clear and decided preponderance of evidence against him as would have required the court to set aside a verdict finding to the contrary. This-court is not sufficiently fa,miliar with the modes of constructing and using bridges upon country highways, the degree of strength required to render them ordinarily and reasonably safe and passable, the weight which they are expected or required to sustain, the care necessary in passing over them, and especially with herds of cattle or other animals, to say, with confidence in the correctness of its own judgment, upon the evidence before it, that the plaintiff was guilty of such negligence.
By the Court. Judgment reversed, and a venire de novo awarded.