Brown v. Green & Flinn, Inc.

Boyce, J.: [1] The averment in the first and second counts is that: “The said plaintiff, while, then and there, in the exercise of due care and caution on his part, lawfully riding along the said road” (Rockland) “upon a motorcycle, by and through the negligence of the said defendant in permitting its said” (automobile or motor) “truck to be operated upon said road by an unskilled and incompetent servant, as aforesaid, was run into by the said truck and thereby struck with great force,” etc. The negligent act averred in these two counts is in permitting the motor truck to be operated upon the road by an unskilled, and incompetent servant, and thereby ran the truck into the plaintiff and injured him. It is the opinion of the court that the act of negligence complained of is sufficiently described, it being also alleged that the injury was caused by reason of such negligent act. The counts are good. [2, 3] The averment in the third count is that: “The said plaintiff * * * by and through the negligence of the said defendant in permitting its said servant to operate said truck upon said road without a license authorizing him so to do, was run into,” etc. The act of driving the motor truck without a license is prohibited by statute, and it is held in negligence cases to constitute negligence per se. But the act itself does not constitute actionable negligence. Between the violation of the statute and the injury complained of there must be shown a causal connection or relation. Nothing of this sort is averred in the count, and it is insufficient. Lindsay v. Cecchi, 3 Boyce, 133, 80 Atl. 523, 35 L. R. A. (N. S.) 699. Whether in an action for negligence the owner, or driver, had a license or not, authorizing him to drive the truck, is in itself a vain thing. The vital question is whether the act described was negligently done. The demurrer is overruled as to the first and second counts, but sustained as to the third.