Norris v. Litchfield , 35 N.H. 271 ( 1857 )

Bell, J.

The question arising upon the instructions asked, as well as those given to the jury, is whether a traveller can recover against a town for damages sustained from a defect of a highway, if at the time of the accident he is trespassing on the rights of others, or violating a law of the State.

It is not questioned that towns are liable where the damage sustained arises in part from defects of the road, and in part from such accidents as could not be prevented by ordinary care and prudence. Palmer v. Andover, 2 Cush. 600; Hunt v. Pownall, 9 Vt. 418; or in part from the wrongful acts of others. Littleton v. Richardson, 32 N. H. 59.

And the court so charged the jury, “ that where some accident occurs which ordinary care and prudence could not prevent, and a defect exists in the highway, by means of which the damage occurs, and without which it would not have occurred, the town is liable.”

But the court added : “ That if the plaintiff’s carriage was in the middle of the travelled part of the road, his agent using ordinary care, and skill, and prudence, considering the circumstances, and came in collision with another carriage, this would be*an accident for which the agent of the plaintiff would not be in fault, so far as this case is concerned; and if such accident led to this damage by a defect in the highway, the town would be liable.”

In actions of this kind it is settled that if the damage sustained has been in any degree directly caused by his own fault or negligence, the plaintiff cannot recover against the town. It was so held in Farnum v. Concord, 2 N. H. 392, the leading case on the subject in this State, as well as by many decisions in neighboring States. Reed v. Northfield, 13 Pick. 94; Smith v. Smith, 2 Pick. 621; Thompson v. Bridgewater, 7 Pick. 188; Howard v. North Bridgewater, 16 Pick. 189; Adams v. Carlisle, 21 Pick. 146; May v. Princeton, 11 Met. 442; Sheperdson v. Coleraine, 13 Met. 55; Palmer v. Andover, 2 Cush. 600; Bigelow v. Rutland, 4 Cush. 247; Hull v. Richmond, 2 W. & M. 337; Moore v. Abbot, 32 Maine 46; Merrill v. Hampden, 26 Maine 234; French v. Brunswick, 21 Maine 29; Jacobs v. Bangor, 16 Maine 187; Hunt v. Pownall, 9 Vt. 411; Kelsey v. Glover, 14 Vt. 708; Allen v. Hancock, 16 Vt. 230.

What constitutes negligence is a mixed question of law and fact, to be settled by the jury under the instructions of the court. Rice v. Montpelier, 19 Vt. 470; Murch v. Concord Railroad, 9 Foster 43; Burr v. Housatonick Railroad, 19 Conn. 566; and it was properly submitted to them.

But the idea of the defendant’s counsel was, that if the plaintiff was himself a wrong-doer, he could maintain no action whatever, however prudent and careful he may have been.

There are decisions which give countenance to this idea, and which hold that where a party who has suffered a loss by the negligence of another, was himself at the time a trespasser, or acting in violation of law, he cannot recover. Munger v. Tonawanda, Railroad, 4 Coms. 349; Hartfield v. Roper, 21 Wend. 615; Brown v. Maxwell, 6 Hill 592, and cases there cited.

But we are unable to agree to the doctrine thus broadly laid down. As a general principle it seems to us wholly immaterial, whether, in the abstract, the plaintiff was a wrong-doer or a trespasser, or wa3 acting in violation of law. For his wrong or trespass he is answerable in damages, and he may be punishable for his violation of law; but- his rights as to other persons, and as to other transactions, are not affected by that circumstance. A traveller may be riding with a horse or carriage which he had no right to take or use; he may be travelling on a turnpike without payment of toll; he may be riding on a day when riding is forbidden, or with a speed forbidden by law, or upon what is called the wrong side of the road; or his team may be standing in the street of a town, without his attending by them and keeping them under his command, as the law requires ; and in none of these cases is his right of action for any injury he may sustain from the negligent conduct of another in any way affected by these C circumstances. He is none the less entitled.to recover, unless it / appears that his negligence or bis fault has directly contributed * to his damage. He may be a trespasser, and his trespass may have in no degree contributed to the damage he has sustained. (Though a trespasser or a wrong-doer as to others, he may have been guilty of neither fault nor negligence as to the party from whom be bas sustained damage. Though engaged in an act wbicb is a violation of law in itself, he may have exercised all proper care for the safety of himself and bis property, and to avoid any injury to another. A trespass is not the less a wrong that it is done by accident, or without design, or even against the will of the actor; but in such case it is not a fault, in the sense of that woi’d, as used in connection with actions for negligence.

So a party may do an act which is a violation of law, and which may perhaps subject him to liability to those who may sustain damage by his conduct; yet it may not be an offence which would subject him to punishment, because the act may have been involuntary; done without negligence, and against his most earnest efforts. In such a case the act is a misfortune — it is not a fault.

It is not enough, then, to show that a party is a wrong-doer, or a trespasser, or violator of the law, to defeat his action for damage sustained from the negligence of another.

It must be shown that such act is a fault, which has directly contributed to the loss or damage of which the party complains. It is not a question, as it has been made in some cases, whether the party is a trespasser, or has done some wrongful act, but whether he is guilty of a fault or of negligence in reference to the matter in question, which has directly contributed to the injury.

The proper question, whether the fact that the plaintiff was on the left of the centre of the road was the fault of the plaintiff, or was a mere accident, was submitted to the jury.

For this opinion we think the opinion of Maule, J., in Barnes v. Ward, 9 M. G. & S. 420, is a sufficient authority. He says, with regard to the objection that the deceased was a trespasser on the defendant’s land at the time the injury was sustained, it by no means follows from this circumstance that the action cannot be sustained. A trespasser is liable to an action for the injury which he does, but he does not forfeit his right of an action for an injury sustained. Thus, in the case of Bird v. Holbrook, 4 Bing. 628; 1 M. & P. 607; the plaintiff was a trespasser, andi indeed a voluntary one, but be was held entitled to an action for an injury sustained in consequence of a wrongful act of tbe defendant, without any want of ordinary caution on the part of the plaintiff, although the injury would, not have occurred if the plaintiff had not trespassed on the defendant’s land. This decision was approved in Lynch v. Warden, 1 Q. B. 37; 4 P. & D. 677; and in Jordin v. Crump, 8 M. & W. 782.

So in Birge v. Gardner, 19 Conn. 507, it is said, it seems that the fact of the plaintiff’s being a trespasser in the act which produced the injury complained of, will not necessarily preclude him from a recovery against a party guilty of negligence. 10 Dig. 9-11.

And in Kerwhacker v. C. & C. Railroad, 3 Ohio N. S. 172, it is held that the mere fact that one person is in the wrong, does not of itself discharge another from the observance of due and proper care towards him, or the duty of so exercising his own rights as not to injure him unnecessarily.

Upon these views we are of opinion that the instructions to the jury were suitable and proper, and that there should be

Judgment on the verdict.