The plaintiff relies with great confidence upon the case of Hanlon v. South Boston Horse Railroad, 129 Mass. 310, in which the presiding judge at the trial refused to rule, that, “if the defendant was driving at a rate of speed prohibited by the ordinance of the city of Boston, and this speed contributed to the injury, this fact would itself constitute negligence on the part of the defendant, and would entitle the plaintiff to recover if he was in the exercise of due care,” and his refusal was held right by this Court. In giving the opinion, after pointing out that driving at a rate of speed forbidden by the ordinance might have occurred without fault of the driver, and might have been justified by circumstances authorizing the jury to find that there was no negligence, Mr. Justice Colt said, “It is not true that, if an unlawful rate of speed contributed to the injury, that alone would give the plaintiff a right to recover, if he was without fault.” There are intimations, without adjudication, to the same effect, in Wright v. Malden & Melrose Railroad, 4 Allen, 283, and in Lane v. Atlantic Works, 111 Mass. 136. See also Kirby v. Boylston Market Association, 14 Gray, 249; Heeney v. Sprague, 11 R. I. 456; Brown v. Buffalo & State Line Railroad, 22 N. Y. 191; Flynn v. Canton Co., 40 Md. 312.
But there is nothing in the language used in Hanlon v. South Boston Horse Railroad inconsistent with the principle which we have already stated. That decision related to the liability of a defendant. It may be, where a penal statute does not purport to create a civil liability, or to protect the rights of particular persons, that a violation of it will not subject the violator to an action for damages, unless his act, when viewed in connection with all the attendant circumstances, appears to be negligent or wrongful. And at the same time Courts may well hold that, in the sanctuary of the law, a violator of law imploring relief from the consequences of his own transgression will receive no favor.
The instruction requested in the case at bar would have become applicable only upon a finding by the jury that the plaintiff’s unlawful act contributed to cause the injury. The jury may have so found; and we are of opinion that upon such a finding, irrespective of the question whether viewed in all its aspects his act was negligent or not, the Court could not properly permit him to recover. The instruction, therefore, should have been given.
The Court rightly refused the instruction requested, that the plaintiff could not recover if at the time of the accident he was violating the ordinance, and so doing an unlawful act. This request ignored the distinction between illegality which is a cause, and illegality which is a condition of a transaction relied on by a plaintiff, or between that which is an essential element of his case when all the facts appear, and that which is no part of it, but only an attendant circumstance. The position of a vehicle, which has been struck by another, may or may not have been one of the causes of the striking. Of course it could not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly and proximately produces, or helps to produce, a result as an efficient cause, and that which is a necessary condition or attendant circumstance of it. If the position of the plaintiff’s vehicle was such as, in connection with ordinary and usual concurring causes, would naturally produce such an accident, that indicates that it contributed to it. But even in that case, external causes may have been so exclusive in their operation, and so free from any relation to the position of the vehicle, as to have left that a mere condition, without agency in producing the result. What is a contributing cause of an accident is usually a question for a jury, to be determined by the facts of the particular case; and such it has been held to be in many cases like the one before us. Damon v. Scituate, 119 Mass. 66; Hall v. Ripley, 119 Mass. 135; Welch v. Wesson, 6 Gray, 505; Spofford v. Harlow, 3 Allen, 176; White v. Lang, 128 Mass. 598; Baker v. Portland, 58 Maine, 199; Norris v. Litchfield, 35 N. H. 271; Sutton v. Wauwatosa, 29 Wis. 21.
The defendant’s third request for an instruction was rightly refused, for reasons which have already been stated. The statute referred to does not relieve the defendant from liability for negligence to a plaintiff whose unlawful act or want of due care does not contribute to his injury. In the opinion of a majority of the Court the entry must be—
Exceptions sustained.[[249]]
HEMMING v. CITY OF NEW HAVEN
Supreme Court of Errors, Connecticut, January 4, 1910.
Reported in 82 Connecticut Reports, 661.
Roraback, J. On September 21st, 1907, Ley & Company, electrical contractors, were constructing a conduit on Chapel Street in New Haven, under a contract with the United Illuminating Company, for the purpose of laying its underground system of wiring in said highway, and for that purpose had caused an excavation to be made on Chapel Street. On September 21st an automobile owned by the plaintiff, and driven by him personally, came through Temple Street in a southerly direction and ran into this excavation, causing the injuries described in the complaint. This automobile had been purchased by the plaintiff on July 27th, 1906, of one Holcombe. Prior thereto the plaintiff had owned another automobile, which was duly registered by the secretary of State, pursuant to the statute then in force. The plaintiff had not made application to the secretary of State for registration of the automobile last purchased, until September 21st, 1907, when he mailed his application, enclosing his check for registration fee, at the post-office in New Haven, to the secretary of State, by whom it was received on September 23d, 1907. On September 28th, 1907, a certificate of registration for the automobile driven by the plaintiff at the time of the accident was issued by the secretary of State, as provided for by law. The registration mark displayed by the plaintiff at the time of the accident bore the number which had been assigned to him as the owner of another automobile owned by him, and which had been disposed of prior to the accident.
The reasons of appeal relied upon are that the court erred in refusing to charge as requested, and in the charge as given.
The defendant requested the court to instruct the jury as follows: “The burden of proof is on the plaintiff to prove by a preponderance of the evidence that at the time of the accident he had the authority of the State of Connecticut to use his machine on the highways of the State, and if the plaintiff does not prove that he had such authority and license, he cannot recover, and your verdict should be for the defendant. If at the time of the accident the plaintiff did not have the authority of the State of Connecticut to use his automobile described in the complaint on the highways of the State, he cannot recover and your verdict should be for the defendant.”