Zageir v. Southern Express Co.

BeowN, J, Tbis action is brought to recover damages for injury to plaintiff’s automobile. Tbe evidence tends to prove plaintiff was driving ber automobile at a very moderate speed along Charlotte Street in Ashe-ville. As she was passing tbe private alleyway leading from tbe street to tbe Manor Hotel a heavy express truck belonging to tbe defendant backed out of tbe alleyway into tbe street and struck tbe plaintiff’s automobile and greatly injured it. There were two men on tbe forepart of tbe. truck, but none on tbe rear. There is evidence tending to prove that tbe truckmen did not keep a lookout as tbe machine backed into tbe street and into plaintiff’s auto, and it is a legitimate inference from tbe evidence that if they bad, tbe collision could bave been avoided. There was an obstruction next to sidewalk that prevented plaintiff from seeing tbe truck as it backed down tbe alleyway into tbe street. Tbe defendant offered evidence to tbe effect that tbe plaintiff bad never been examined as to ber qualifications, and bad no license authorizing ber to drive an automobile, and that she was at tbe time of tbe collision violating tbe ordinance of tbe city. At tbe conclusion of tbe evidence defendant moved to nonsuit and requested tbe court to charge tbe jury: “That it being admitted that tbe plaintiff was driving ber automobile through tbe streets of tbe city of Asheville without having stood the examination or obtained tbe license required by tbe ordinances of- said city, tbe plaintiff was at tbe time of tbe collision complained of engaged in an unlawful act, and is not entitled to recover any damages for any injury which she might bave sustained while engaged in such unlawful act, and tbe jury should answer tbe first issue No.’ ” *694 In our opinion there is abundant evidence of negligence upon the part of defendant, and that upon all the evidence presented in this record plaintiff is entitled to recover for the damage done unless the above instruction should have been given. We think it was properly refused. It is true that the plaintiff at the time of the accident was negligent in not procuring a license from' the city of Asheville to operate her automobile upon the streets of the city, but she is not placed outside all protection of the law nor does she forfeit all her civil rights merely because she violated such ordinance. The plaintiff’s violation of the law, in order to bar her recovery, must, like any other act, be a proximate cause in the same sense in which defendant’s negligence must have been a proximate cause to give a right of action. A collateral unlawful act not contributing to the injury will not bar a recovery. See Davis v. R. R., 170 N. C., 582. The right of a person to maintain an action for a wrong committed on him is not taken away because at the time of the injury he was disobeying a statute, which act on his part in no way contributed to his injury. 1 Shearman and Red. Neg., sec. 94, sec. 104 (6 Ed.); Hughes v. Atlanta Co., 136 Ga., 511; Armistead v. Lounsberry, 151 N. W., 542; Sutton v. Wauwatosa, 29 Wis., 21; P. W. and B. R. R. Co. v. Towboat Co., U. S. 23 Howard 209, 16 L. Ed., 433; 547 Ann. Cases, 1912 C 394 and notes. It is held by our Court that while the violation of a city ordinance relating to the running of automobiles on the streets is negligence per se, it- is necessary, to recover damages alleged to have been caused thereby, that the plaintiff show that this negligence was the proximate cause of the injury complained of. Ledbetter v. English, 166 N. C., 125. The principle is well settled, as stated by Judge Cooley, “that to deprive a party of redress because of his own illegal conduct the illegality must have contributed to the injury.” 1 Cooley on Torts (3 Ed.), 269. The same principle is stated by Watson: “At the outset it may be stated as a general rule that the mere fact that the plaintiff, at the time of the injuries received, is engaged in the commission of an unlawful act is not sufficient to relieve the author of the wrong or liability in damages therefor.” Personal Injuries, 711. The Supreme Court of Washington decided a case exactly like this, and said: “In other words, before the violation of the statute by the person injured will constitute a defense to the negligent act of the person injuring him, there must be shown some causal connection between the act involved in the violation of the statute and the act causing the injury. Here there was no causal connection. The injury would have happened in the same manner it did happen had the respondent theretofore paid the license fee due the State and been in possession of the statutory license.” Switzer v. Sherwood, 80 Wash., 19. *695 It is manifest from tbe evidence that the injury to the automobile would have occurred had the plaintiff’s machine been driven by the most experienced chauffeur. The case of Lloyd v. R. R., 151 N. C., 536, is not in point. Lloyd’s wrong was the proximate and sole cause of his own injury. He willfully violated a criminal statute by working twenty-three hours consecutively, and that was his only ground for recovery. He became fatigued, weakened, and exhausted, both in body and mind, having worked continuously for a long period of time without sleep and nourishment, and could not, therefore, properly exert himself for his own safety and protection. The injury would never have happened if he had obeyed the statute. It was his very violation of the statute that was the proximate cause of his injury, and in this respect Lloyd’s case differs entirely from this plaintiff’s ease. The Massachusetts cases relied on by the defendant are not authoritative. Those cases, like some in Maine and Vermont, were based on a statute prohibiting the general travel on a highway on Sunday. It was formerly held in those States that an ordinary Sunday traveler could not recover for injuries suffered from obstacles in the road or other negligence, though he could recover for wanton or willful injuries.. Those statutes have now been repealed and the decisions based upon them are obsolete. In commenting upon these cases, Shearman and Redfield say that this application of the Sunday law has been repudiated by all the other courts which have passed upon it. Neg., sec. 104. The defendant moved for a new trial upon the ground that the verdict was returned and received by the clerk during the recess, without its consent. The following are the facts found by the court: “Immediately after the presiding judge had charged the jury, the jury retired to the jury room for the purpose of acting upon the evidence and awarding a verdict; immediately after the jury retired the court took a recess until 3 o’clock. Neither the plaintiff nor the defendant, in open court, consented that the clerk might take the verdict in the absence of the judge. After the court had adjourned for the noon recess, counsel for the plaintiff, in the absence of the judge and in the absence of defendant’s counsel, stated to the clerk that he would consent for the clerk to take the verdict in the event that the jury should reach a verdict before 3 o’clock. The defendant did not enter into such an agreement. Upon convening of court at 3 o’clock, the deputy clerk stated to the court that during the noon recess the jury had come in and returned a verdict in the absence of the parties or their attorneys, and that he had taken the verdict, and that the issues had been delivered to him in writing; that he had discharged the jury and that the jury had separated. The court immediately called the jury into the box, after having to send out *696 of tbe courtroom for two of them, and wben all were present tbe presiding judge read tbe issues to tbe jury and asked if tbe issues read stated tbeir findings, and tbey replied tbat tbey did. Whereupon, eacb juror was asked tbe question if be bad discussed tbis case witb any person after tbe judge bad charged tbe jury, and prior to tbe convening of court, and nine of them stated tbat tbey bad not and three of them stated tbat tbey bad talked about tbe case after tbey bad delivered tbe issues to tbe clerk and bad been discharged; two of them stated tbat they bad talked about tbe case to plaintiff’s counsel, in tbe presence of tbe deputy clerk, but none of them bad discussed it witb any person before delivering tbe issues to tbe clerk or before tbey were discharged. Tbe verdict upon which judgment was rendered was agreed to by tbe jury before tbe jury separated and no improper influence induced tbe verdict. Tbe issues were not recorded until after tbe verdict was returned to tbe judge.” Under tbe authorities we see no reason to review tbe exercise of discretion upon tbe part of bis Honor in refusing to set aside tbe verdict in tbis case, inasmuch as be has found tbat no improper influence induced it. King v. Blackwell, 96 N. C., 322; Luttrell v. Martin, 112 N. C., 594; Petty v. Rousseau, 94 N. C., 362; Tillett v. R. R., 166 N. C., 520. In tbat case Mr. Justice Allen says: “Tbe custom, which is very general, of allowing juries to return tbeir verdicts to tbe clerk in tbe absence of tbe judge, is not approved, as it frequently results in misunderstanding and in an attempt to impeach the verdict; but in tbis case tbe findings of tbe judge show tbat tbe verdict .upon which tbe judgment is rendered was agreed to before tbe jury separated, and there is nothing to indicate tbat any improper influence induced tbe verdict, and tbe action of bis Honor in refusing to set it aside is sustained.” No error.