Southern Railway Co. v. Rice's Administratrix

Buchanan, J., delivered the opinion of the court. This is an action to recover damag'es for the alleged negligence of the Southern Railway Company, which resulted in the death of the plaintiff’s intestate, James G. Rice. The decedent was an 'engineman of the railway company in charge of one of its yard engines. His death was caused by the derailment and overturning of his engine at or near Fourteenth street, in the city of Richmond. Conceding that the evidence is sufficient to show that the defendant company was guilty of negligence in the construction and maintenance of its track where the engine was derailed, there was evidence tending to show that the deceased, when operating his train at the time he was injured, was violating a speed ordinance of the city of Richmond, and that if he had been operating his engine within the speed limit there would have been no accident and he would have suffered no injury, notwithstanding the condition of the track. The speed limit fixed by the ordinance for engines, etc., on a railroad track in a street was not to be in excess of four miles an hour, and any one who propelled it at a greater rate of speed or caused it to be done, or assisted in doing it or causing it to be done, was subject to a fine of ten dollars. There was evidence that the engine operated by the plaintiff’s decedent was moving, with fifteen loaded and five empty cars, from the eastern end of the city over or across Fourteenth street, on a slight up-grade, on its way to Manchester; that just before reaching the line of Fourteenth street, or while in the street, the engine was derailed, passed over the street, over the sidewalk, into the yard on the west side of the street, over or across a side track, thence to another side track on which was stand — 243 — ing a box car, with which the engine collided and was overturned. The injuries causing the d’eath of the plaintiff’s intestate were from escaping steam, resulting from the overturning of the engine. The evidence further tended to show that the distance which the engine moved after it was derailed, before it collided with the box car, was some 130 feet or more, and that if the engine had been running within the speed limit it would not have gone, after it was derailed, with its train anything like that distance. The principal question involved in this writ of error is as to giving and refusing instructions. The contention of the defendant company is and was that the plaintiff was not entitled to recover if it appeared from the evidence that at the time her decedent was injured he was operating his engine in violation of the speed ordinance of the city, and that the excessive speed at which h'e was running his engine contributed to his injury. The plaintiff, on the other hand, insisted and insists that such violation of the ordinance did not bar her recovery unless the jury believed from the evidence that the plaintiff’s intestate was operating his engine at a negligent rate of speed, and, if so, that such negligence contributed to his injury. In other words, the question involved is whether the violation of the ordinance, such violation contributing to the plaintiff’s intestate’s injury, amounted as a matter of law to contributory negligence, or was merely 'evidence tending to show contributory negligence. The railway company insists that the case of Reiger v. Atlantic & Danville R. Co., 95 Va. 418, 28 S. E. 590, and the cases in which it has been followed, sustain the railway company’s contention; while, on the other hand, th'e plaintiff claims that the case of Chesapeake & Ohio Ry Co. v. Jennings, 98 Va. 70, 34 S. E. 986, directly, and certain other of our cases indirectly, sustain her contention. — 244 — ; Without reviewing the cases relied on by either the plaintiff or defendant or attempting to harmonize the real or apparent conflict between them, if any, we will consider the question involved here as one of first impression- in this State, since none of the cases relied on by either side present the question of the right of an engin’eman to recover damages from his employer for injuries suffered ■when-running his engine in violation of a city ordinance and such violation directly contributed to his injury. The text-books seem to be agreed that the general rule is that if the person injured was. at the time he. received the injury doing some act in violation of a statute or ordinance, he cannot recover, if such violation contributed to his injury.- ■ Shearman & Redfield, in their work on Negligence, Vol. 1, sec. 104 (5th ed.),1 lay it down as the general rule that “if the plaintiff is acting in violation of a statute or ordinance at the time the accident occurred, and such violation proximately contributes to his injury, he is guilty of contributory negligence. But if such violation does not contribute to the injury, it is no defense.” Labatt on Master & Servant, sec. 362, says: “There can be no question that where a servant’s injury was proximately caused by the fact that he was violating a statutory or municipal ordinance, the meaning and effect of which are perfectly clear, he cannot recover damages.” In Cooley on Torts (3rd ed.), Yol. 1, pp. 273-4, it is said that the fact that a party injured was at the time violating the law does not put him out of the protection of the law—he is never put by the law at the mercy, of others. If he is negligently injured on the highway, he may have redress, notwithstanding at the time he was upon the wrong side of the road, provided that act did not contribute to his injury. Twenty-nine Cyc. 525, in stating the general rule, says — 245 — that “if the person injured was at the time of receiving the injury doing some act in violation of a statute or ordinance, such person cannot recover if such violation contributed to the injury, the violation amounting to contributory negligence.” In 7 Am. & Eng. Enc. Law (2nd ed.), the general rule is stated as follows: “It is not contributory negligence per se for the injured person at the time of his injury to be engaged in a violation of law, either positive or negative in its character. Before an illegal act or omission can be held contributory negligence, it must appear that such act or omission was a proximate cause of the injury. It is usually held that the mere collateral wrong-doing of the plaintiff, cannot of itself bar him of his action when it did not proximately contribute to his injury.” Thompson on Neg. (2nd ed.), sec. 11; Beech on Contributory Reg., sec. 47; 4 Dillon Mun. Corp. note,, p. 3004, cases. The general rule as laid down by the text-writers quoted and by others which might be cited seems to be fully sustained by reason and authority. The reason why no recovery is permitted in such a case is based upon grounds of public policy. That principle of public policy is this (as stated by Lora Mansfield in Holmes v. Johnson, and quoted with approval in Roller v. Murray, 112 Va. 780, 783-4, 72 S. E. 665, 38 L. R. A. [N. S.] 1202)—“ex dolo malo non oritur actio—no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act, if from the plaintiff’s own stating or otherwise the cause of action appears to arise ex turpi causa, or the transgressions of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground that the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff.” ■ While this rule finds its application more frequently — 246 — in actions upon illegal contracts, it applies to cases in tort. It is immaterial, as was said by Judge Gray in Hall v. Corcoran, 107 Mass. 251, 253 (9 Am. Rep. 30), “whether the form of the action is in contract or in tort; the test in each case is whether, when all the facts are disclosed, the' action appears to be founded in a violation of law, in which the plaintiff has taken part.” See also 1 Am. & Eng. Enc. Law & Pr. 1024; 38 Cyc. 529-30, and cases cited in the notes to each; Newcomb v. Boston Protection Dept., &c., 146 Mass. 596, 602, 16 N. E. 555, 4 Am. St. Rep. 354; Broschart v. Tuttle, 50 Conn. 1, 21 Atl. 925, 11 L. R. A. 33. The case under consideration seems to come clearly within the general rule that, although a person has sustained damages, if the damages arose out of an illegal act or transaction in which he was engaged, he cannot recover. In Newcomb v. Boston Protection Dept., supra, it was said in the opinion of the court that “no case has been brought to our attention, and upon careful examination we have found none in which a plaintiff whose violation of law contributed directly and proximately to cause him an injury, has been permitted to recover for it, and the decisions are numerous to the contrary.” It was held in M. K. & T. Ry. Co. v. Roberts (Texas), 47 S. W. 270, that an employee (an engineman) could not recover damages from his employer for injuries suffered while running his engine within the limits of a city at a higher rate of speed than that fixed by ordinance, if such negligence proximately contributed to the injury. Little v. Southern Ry. Co., 120 Ga. 347, 47 S. E. 953, 66 L. R. A. 509, 102 Am. St. Rep. 104, decides that an employee (engineman) of a railroad company cannot recover damages from his employer for injury suffered while running his engine in violation of a penal statute or a municipal ordinance, if such injury was proximately caused by such violation.- — 247 — In each of the two cases last cited it was sought, as in this case, to, escape th’e effect of the plaintiff’s conduct in violating the ordinance, etc., upon the ground that the defendant itself was responsible for such violation; but in each it was held, and properly so we think, that if the railway) company knew that the ordinance was regularly violated by its employees it would not relieve the violator of the law of the effects of such violation. It would be contrary to public policy for the courts to relieve a person of the effect or consequence of his violation of law upon the gi'ound that the railroad company and its employees were in the habit of. violating the particular law. The plaintiff insists that even if the evidence showed that her intestate was violating the city speed ordinance when injured, and that such violation directly contributed to his injury, and was therefore negligence as a matter of law, instructions “A,” “B” and “E,” which so told the jury, were properly rejected by the court because such violation of the ordinance was not stated in the railway company’s grounds of defense.. One of these grounds of defense (the 5th) states: “That the plaintiff’s intestate was guilty of contributory negligence.” In order to prove that the plaintiff’s intestate was guilty of contributory negligence, no other than the plea of “not guilty” was necessary. On motion of the plaintiff, the court ordered the railway company to file the particulars of its defense, which was done. No objection was made to the statement filed. Under the fifth ground stated, the railway company clearly had the right to introduce any evidence which showed that the plaintiff’s intestate was per se guilty of contributory negligence, or being relevant tended to show, along with the other facts and circumstances of the case, contributory negligence. From what has been said, it follows that the court is of opinion that the trial court erred in refusing to give in — 248 — structions “A,” “B” and “E” offered by the railway company, and in giving instruction Eo. 7, which is in conflict with them. The refusal of the court to give the following instruction offered by the railway company is assigned as error: “The court instructs the jury that while they are the judges of the facts, the court is the judge of the law, and it is the duty of the jury to accept and act upon the law as stated in the instructions, they applying the facts as they may determine them thereto.” Whil'e the instruction in question correctly stated the law, no prejudice resulted to the plaintiff in error from the court’s refusal to give it, since the court stated to the jury, after reading to them the other instructions, that the court was the judge of the law as applied to the case, and they were the judges of the facts and the. weight of the testimony. The court refused to permit the railway company to introduce evidence tending to sIloav that the plaintiff’s decedent had the reputation among his fellow-employees as a fast runner and. had, previous to the accident in which he was injured and at the same point, disregarded the speed ordinance. This action of the court is assigned as error. The general rule is that such evidence is not admissible. Prof. Wigmore, in his work on Evidence, sec. 65, in discussing the admissibility of evidence of that character, says: “A few courts have shown an inclination to admit exceptionally the character of a person charged Avith a negligent act (contributory negligence if a plaintiff) as throwing light on the probability of his having acted carelessly on the occasion in question; provided, that the other evidence leaves the matter in great doubt, or that the evidence is purely circumstantial, or (as sometimes put) that there are no eye-witnesses testifying. . . . Such 'evi — 249 — deuce is no doubt likely to be of some probative value in such cases, and under the above limitations is hardly contrary to the ordinary policy of avoiding confusion of issues (ante 64). As a matter of law, however, the doctrine is maintained in a few jurisdictions only and has been expressly repudiated in many.” Even in those jurisdictions where this 'exceptional rule prevails, as stated by Prof. Wigmore, the rejected evidence would not have been admissible under the facts of this case, since the uncontradicted evidence shows that the engineer was running his engine at a speed of from 12 to 15 miles an hour instead of four miles, the maximum speed permitted by the ordinance. The court properly rejected the evidence. For refusing to give instructions “A,” “B” and “E” offered by the railway company, and for giving instruction 3STo. 7, the judgment complained 'of must be reversed, the verdict of the jury set aside and the cause remanded for a new trial to be had not in conflict with the views expressed in this opinion. Reversed.