Monroe v. Hartford Street Railway Co. , 76 Conn. 201 ( 1903 )

The purpose of the city ordinance is obvious. It assumes that any horse in a city street without a driver or keeper is a source of danger to the person and property of those using the street, unless the horse is hitched, and that injury to such persons may be the natural result of leaving an unhitched horse in a city street. For the protection of such persons and the prevention of such injuries, it makes the act of leaving any unhitched horse in a city street a misdemeanor punishable by a fine. State v. Keenan,57 Conn. 286.

It is also obvious that the evil provided against includes not only the permanent or indefinite abandonment of a horse, but those temporary departures which are most likely to frequently occur if not forbidden. The meaning of the language used to accomplish this obvious purpose is clear. There can be no reasonable doubts as to the meaning of "unhitched," used in this connection, and very little as to "leaving." Certainly going away from the horse beyond sight, hearing, and reasonably immediate reach, is "leaving" it within the meaning of the ordinance. When an unhitched horse has been thus left, the ordinance has been violated, whether the horse is gentle and well trained or not.

In his charge the trial judge adds to the ordinance a condition of violation not expressed by its language nor included in its purpose, and tells the jury that it is not enough to find that the horse is unhitched in the highway, and that it has been left in this condition by its driver, but they must also determine whether the horse unhitched, and so left by its driver, is still within his control, and that the kind of control which a driver may retain over a horse he has left unhitched in the street is a question of fact for them to settle. The court says: "It is for you to determine under the circumstances of this case whether the horses were left by the driver, Brewer, unhitched and beyond his control." The kind of control which the jury are thus invited to find from the particular circumstances of the case, appears to be that which a driver may be said to possess over horses after he has left them and until his return, when the horses have been accustomed to stand still while so left. Possibly the trial judge may have intended merely to instruct the jury that Brewer did not leave the horses, within the meaning of the statute, if in fact he remained so near as to substantially retain the physical ability to watch their movements and intervene at once in case of necessity. But certainly the jury might, and probably did, understand him differently. Reading this passage in connection with the remainder of the charge, the state of the evidence, and the claims made, it seems clear that the jury must have understood the court to instruct them that leaving the horses unhitched did not violate the statute, unless, under all the circumstances of the particular leaving, they should be satisfied that his conduct was negligent; in other words, the jury was practically instructed that the ordinance only prohibited negligently leaving a horse unhitched in the street.

This instruction, in view of the state of the evidence and claims made, was inaccurate and inadequate. It was, however, harmless, if a violation of the ordinance could not be a proximate cause of the injury alleged, and a new trial should not be granted unless it is clear as a matter of law that when a driver has left his horse in the street unhitched, and a collision between his team and another vehicle occurs directly after he has left them and near the place where he has left them, this unlawful act of his may be a proximate cause of the injury inflicted by the collision. We think it clear that such an unlawful act may be a proximate cause of such injury.

There is some real and more apparent conflict of opinion in the many cases treating of the relation between an illegal act and a coincident injury. In doing an unlawful act a person does not necessarily put himself outside the protection of the law. He is not barred of redress for an injury suffered by himself, nor liable for an injury suffered by another, merely because he is a lawbreaker.

In actions to recover for injuries not intentionally inflicted but resulting from a breach of duty which another owes to the party injured — commonly classed as actions for negligence — the fact that the plaintiff or defendant at the time of the injury was a lawbreaker may possibly be relevant as an incidental circumstance, but is otherwise immaterial unless the act of violating the law is in itself a breach of duty to the party injured in respect to the injury suffered. Ordinarily, in actions of this kind, the breach of duty is a failure to exercise, in conduct liable to be dangerous to others, that care which a man of ordinary prudence would exercise under the particular circumstances of the case. But the State regards certain acts as so liable to injure others as to justify their absolute prohibition. In such case doing the forbidden act is a breach of duty in respect to those who may be injured thereby.

The cause of action which arises upon an injury resulting from a breach of duty in respect to the party injured in neglecting to use that care which the law requires under the particular circumstances of the case, for the protection of those liable to be injured by such neglect, is the same as the cause of action arising upon an injury resulting from a breach of duty in respect to the person injured in doing an act forbidden by statute, for the protection of those liable to be injured through such act. The main distinction lies in the method of proof. In the former case, the breach of duty must be established by showing a want of due care under all the circumstances; in the latter case it may be established by proving the commission of the illegal act. In both cases two questions are presented. First, was there a breach of duty in respect to any person liable to be injured by the conduct proved? Second, was this breach of duty a proximate cause of the injury alleged? And the principles which determine the relation of the negligent conduct in the one case, or the illegal act in the other, to the resulting injury as a proximate cause, are the same. This view of the law is fully established by our decision in Broschart v. Tuttle,59 Conn. 1.

Applying the principles which determine the causal relation between a negligent act and the following injury, to the admitted facts in the present case, it is apparent that the illegal act was not necessarily a mere independent concomitant or condition of the collision, but might well be a contributing cause, and might be, according as the jury should find the attendant or surrounding circumstances, a proximate cause of the injury. "Cause" and "consequence" are correlative terms. One implies the other. When an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result.

It is the nature of a horse, whether vicious or not, when at large in a public highway, to be a source of danger to those using the highway; and the unlawful act of letting a horse into the highway is adapted to aid in producing an injury received by a child playing in a highway from a horse thus left loose, and the unlawful act may be the cause, and proximate cause, of such injury. Baldwin v. Ensign, 49 Conn. 113,115. It is the nature of a horse harnessed to a wagon and left without any keeper or restraint in a city street, to be a source of danger to those using the street, and when the driver of a team used in delivering ice from house to house negligently leaves his horses unrestrained while going from the sidewalk to the adjoining post-office for his mail, and the horses thus released from control go on their way through the street, that negligent act of the driver may be the cause, and proximate cause, of an injury received through the collision of the ice-cart with another vehicle in the street. Loomis v. Hollister, 75 Conn. 718.

And so the illegal act of leaving horses, harnessed to a wagon, unhitched, is adapted to aid in producing a collision resulting from the horses, thus left unrestrained, pursuing their own way through the street. It is for this very reason that the State makes the act illegal. When the resulting collision follows such illegal act in natural sequence, the act is a cause of the collision, and if the sequence is direct and unbroken by any independent, intervening cause, may be the proximate cause. Whether or not, under all the circumstances of the case, it is the proximate cause, is a question of fact for the jury under proper instructions from the court.

The fact that the plaintiff's servant had violated the city ordinance was, therefore, one upon which the plaintiff's right of recovery might depend, and the error of the trial court in the instructions given upon the meaning of that ordinance was material and harmful.

Upon the trial the defendant produced as a witness one John H. Carlson, who was formerly in its employ and was in charge of the car as motorman at the time of the collision. Carlson testified to facts and circumstances tending to show that his conduct was not negligent. Upon cross-examination the plaintiff drew from him an admission that, while employed by defendant as motorman upon another line, he had some trouble in respect to his management of a car. The defendant objected to the questions by which this admission was obtained, and duly excepted to the ruling of the court admitting the questions.

The fact elicited by the plaintiff's questions was plainly irrelevant and immaterial, and we do not see how in this case such questioning could serve any legitimate purpose of cross-examination. But if the only effect of the error was the admission of an insignificant bit of irrelevant and immaterial testimony, it is not ground for a new trial. Inevitably such testimony to some extent creeps into most trials, and the granting of new trials for such errors would not further, but would seriously obstruct, a just determination of the rights of litigants. If, however, as is claimed by defendant, the course of proceedings as detailed in the record shows that the evidence was admitted under such circumstances that the jury might properly infer an instruction from the court that in determining the only negligence alleged, that is, a failure to exercise ordinary care in the management of a car at the time of accident, they were at liberty to consider facts tending to prove negligence in the selection of competent servants, the error would be a fatal one. It is unnecessary to consider whether this claim of the defendant is fairly supported by the record, inasmuch as a new trial must be granted for error in the charge.

The other errors assigned in the appeal do not call for special mention.

There is error, the judgment of the Court of Common Pleas is set aside, and a new trial is granted.

In this opinion the other judges concurred.