A Selection of Cases on the Law of Torts

by Unknown

Appeal from County Court for Milwaukee County.

Action against a town to recover damages for injuries to plaintiff’s cattle, caused by the breaking down of a defective bridge which they were crossing.

The plaintiff started from Columbus on a Friday morning with a drove of about fifty cattle, intending to take them to Milwaukee, and sell them. Stopping at Hartland over Saturday night, he resumed his journey on Sunday morning, and at about four o’clock, P. M., reached a public bridge of about seventy-two feet span, over the Menomonee River, in the town of Wauwatosa. The cattle were driven upon the bridge, and when the greater part of them were near the middle of the span the stringers broke, some twelve feet from the abutments at each end, and precipitated the structure, with the cattle upon it, into the river, causing the death of some, severely injuring others, and rendering the remainder for a time unsalable.

The complaint alleges, that the injury was caused by the dangerous, unsafe, and rotten condition of the bridge, and the neglect of the defendant to keep it in proper repair.

The answer denies the negligence charged to the defendant, and alleges that the cattle were driven upon the bridge in so careless and negligent a manner as to cause it to break; and, also, that they were so driven upon the bridge on Sunday.

After hearing the evidence on the part of the plaintiff, the Court granted a nonsuit, on the ground that the plaintiff, being in the act of violating the statute prohibiting the doing of secular business on Sunday, when the injury occurred, could not recover therefor. The plaintiff appealed.[^[246]]

Dixon, C. J. 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 offence, 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 nonsuit 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 the injury, and which will preclude a recovery against the town, is not a new one; nor is the law, as the Court below held it to be, without some adjudications directly in its favor, and those by a judicial tribunal as eminent and much respected for its learning and ability as any in this country. Bosworth v. Swansey, 10 Met. 363; Jones v. Andover, 10 Allen, 18. A similar, if not the very same principle has been maintained in other decisions of the same tribunal. Gregg v. Wyman, 4 Cush. 322; May v. Foster, 1 Allen, 408. But in others still, as we shall hereafter have occasion to observe, the same learned Court has, as it appears to us, held to a different and contradictory rule in a class of cases which it would seem ought obviously to be governed by the same principle. The two first above cases were in all material respects like the present, and it was held there could be no recovery against the towns. In the first, the opinion, delivered by Chief Justice Shaw, and which is very short, commences with a statement of the proposition, repeatedly decided by that Court, “that to maintain the action it must appear that the accident was occasioned exclusively by the defect of the highway; to establish which, it must appear that the plaintiff himself is free from all just imputation of negligence or fault.” The authorities to this proposition are cited, and the statute against the pursuit of secular business and travel on the Lord’s day then referred to, and the opinion proceeds: “The act of the plaintiff, therefore, in doing which the accident occurred, was plainly unlawful, unless he could bring himself within the excepted cases; and this would be a species of fault on his part which would bring him within the principle of the cases cited. It would show that his own unlawful act concurred in causing the damage complained of.” This is all of the opinion touching the point under consideration.

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 highway, and of the traveller on the wrong side of the road with his vehicle at the time of the collision, and the language of the Court alluding to such “conduct of the party as contributing to the accident or injury which forms the groundwork of the action,” very clearly indicate the true ground upon which the doctrine of contributory negligence, or want of due care in the plaintiff, rests, but it is not shown how or why the mere violation of a statute by the plaintiff constitutes such ground. Upon this point the Court only say: “It is true that no direct unlawful act of omission or commission by the plaintiff, done at the moment when the accident occurred, and tending immediately to produce it, is offered to be shown in evidence. But it is also true that, if the plaintiff had not been engaged in the doing of an unlawful act, the accident would not have happened, and the negligence of the defendants in omitting to keep the road in proper repair would not have contributed to produce an injury to the plaintiff. It is the disregard of the requirements of the statute by the plaintiff which constitutes the fault or want of due care, which is fatal to the action.” It would seem from this language that the violation of the statute by the plaintiff is regarded only as a species of remote negligence, or want of proper care on his part contributing to the injury.

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, and the actions were dismissed upon the principle that the law will not permit a party to prove his own illegal acts in order to establish his case.

In direct opposition to the above decisions are the numerous cases decided by the Courts of other States, the Supreme Court of the United States, and the Courts of Great Britain, which have been so diligently collected and ably and forcibly presented in the brief of the learned counsel for the present plaintiff. Of the cases thus cited, with some others, we make particular note of the following: Woodman v. Hubbard, 5 Foster, 67; Mohney v. Cook, 26 Penn. 342; Norris v. Litchfield, 35 N. H. 271; Corey v. Bath, id. 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 id. 199; Kerwhacker v. Railway Co., 3 Ohio St. 172; Phila., &c. Railway Co. v. Phila., &c. Tow Boat Co., 23 How. (U. S.) 209; Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 M. G. & S. 420.