228 N.Y. 164

ELIZABETH MARTIN, as Administratrix of the Estate of WILLIAM J. MARTIN, Deceased, Appellant,

v.

SAMUEL A. HERZOG, Respondent, Impleaded with Another.

Negligence — Highway Law — driving a vehicle at night on public highway without lights is negligence — erroneous charge.

1. Where a ease has been tried and argued on the assumption of a certain fact, it is not important whether that fact might have been a question for the jury. A controversy put out of a case by the parties is not to be put into it by the court.

2. Evidence of a collision occurring more than an hour after sundown between an automobile and an unseen buggy, proceeding without the lights required by the statute (Highway Law [Cons. Laws, ch. 25], § 329-a, as amended by L. 1915, ch. 367), is evidence from which a causal connection may be inferred between the collision and the lack of-signals.

3. Where, in an action to recover for the death of plaintiff's intestate, killed in a collision between a wagon in which decedent was riding at night and an automobile, negligence was charged against the driver of the car in that he did not keep to the right of the center of the highway, and negligence against decedent, who was driving the wagon, in that [165] he was traveling without lights as required by the statute, it was error for the court to charge, at plaintiff's request, that "the fact that the plaintiff's intestate was driving without a light is not negligence in itself." They should have been told not only that the omission of the lights was negligence, but that it was "prima facie evidence of contributory negligence," i.e., that it was sufficient in itself, unless its probative force was overcome, to sustain a verdict that the decedent was in fault.

Martin v. Herzog, 176 App. Div. 614, affirmed.

(Argued December 11, 1919; decided February 24, 1920.)

APPEAL from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1917,reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial. The nature of the action and the facts, so far as material, are stated in the opinion.

Hugh A. Thornton and Martin J. Tierney for appellant. The omission of plaintiff's intestate to have a light upon his vehicle was not prima facie evidence of contributory negligence by him. (Amberg v. Kinley, 214 N. Y. 531; Barr v. Green, 210 N. Y. 252; Kelly v. N. Y. S. Rys. Co., 207 N. Y. 342; Mariano v. Lehmaier, 173 N. Y. 530; Donnelly v. City of Rochester, 166 N. Y. 315; Graham v. Manhattan Ry. Co., 149 N. Y. 336; McRickard v. Flint, 114 N. Y. 222; Briggs v. N. Y. C. & II. R. R. R. Co., 72 N. Y. 26; McGrath v. N. Y. C. R. R. Co., 63 N. Y. 522; Knupfe v. Knickerbocker Ice Co., 84 N. Y. 488; Flucker v. Zeigle Brewing Co., 201 N. Y. 40; Orr v. Baltimore & O. R. Co., 168 App. Div. 548; Shields v. Pugh & Co., 122 App. Div. 586; Koch v. Fox, 71App. Div. 288; Buys v. Third Ave. R. R. Co., 45 App. Div. 11; McCambley v. Staten Is. M. R. R. Co., 32 App. Div. 346; McCauley v. Schneider, 9 App. Div. 279; Fox Constr. Co., Inc., v. Dailey's Towing Line, Inc., 180 App. Div. 593; Fitten v. Sumner, 176 App. Div. 617; Karpeles v. Heine, 227 [166] N. Y. 74.) The court's charge in reference to contributory negligence was correct in every respect and not prejudicial error. (Kelley v. N. Y. C. Rys., 207 N. Y. 342; Mendelson v. Van Rensselaer, 118 App. Div. 516; Barr v. Green, 210 N. Y. 252; Amberg v. Kinky, 214 N. Y. 531.)

Herbert C. Smyth, Roderic Wellman and Alfred, W. Andrews for respondent. The refusal to charge defendant's request, that the absence of a light on the buggy was prima facie evidence of contributory negligence, was prejudicial error. (Amberg v. Kinley, 214 N. A. 531; Racine v. Morris, 201 N. Y. 240; Jetter v. N. Y. C. & II. R. R, R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & II. R. R. R. Co., 64 N. Y. 535; Willy v. Mulledy, 78 N. Y. 310; Pauley v. S. G. & L. Co., 131 N. Y. 90; Lewis v. L. I. R. R. Co., 162 N. Y. 52; Huda v. Am, Glucose Co., 154 N. Y. 474; Lambert v. S. I. R. R. Co., 70 N. Y. 164; Fisher v. Vil. of Cambridge, 133 N. Y. 527.)

CARDOZO, J.

The action is one to recover damages for injuries resulting in death. Plaintiff and her husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck by the defendant's automobile coming in the opposite direction. They were thrown to the ground, and the man was killed. At the point of the collision the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy, emerging, the defendant tells us, from the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the center of the highway (Highway Law, sec. 286, subd. 3; sec. 332; Consol. Laws, ch. 25). Negligence is charged against the plaintiff's interstate, the driver of the wagon, in that he was traveling without lights (Highway Law, sec. 329a, as amended by L. 1915, ch. 367). There is no evidence [167] that the defendant was moving at an excessive speed. There is none of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as the wheels of his car turned along the curve toward the left; and looking in the direction of the plaintiff's approach, he was peering into the shadow. The case against, him must stand, therefore, if at all, upon the divergence of his course from the center of the highway. The jury found him delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial. We agree with the Appellate Division that the charge to the jury was erroneous and misleading. The case was tried on the assumption that the hour had arrived when lights were due. It was argued on the same assumption in this court. In such circumstances, it is not important whether the hour might have been made a question for the jury (Todd v. Nelson, 109 N. Y. 316, 325). A controversy put out of the case by the parties is not to be put into it by us. We say this by way of preface to our review of the contested rulings. In the body of the charge the trial judge said that the jury could consider the absence of light "in determining whether the plaintiff's intestate was guilty of contributory negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that the absence of light necessarily makes him negligent, but it is a fact for your consideration." The defendant requested a ruling that the absence of a light on the plaintiff's vehicle was "prima facie evidence of contributory negligence." This request was refused, and the jury were again instructed that they might consider the absence of lights as some evidence of negligence, but that it was not conclusive evidence. The plaintiff then requested a charge that. "the fact that the plaintiff's intestate was driving without a light is not negligence in itself," and to this the court acceded. The defendant saved his rights by appropriate exceptions.

[168] We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway (Highway Law, sec. 329a). By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this state (Amberg v. Kinley, 214 N. Y. 531; Karpeles v. Heine, 227 N. Y. 74; Jetter v. N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535, 538; Marino v. Lehmaier, 173 N. Y. 530, 536; cf. Texas & Pacific Ry. Co. v. Rigsby, 241 U. S. 33, 39, 40; Prest-O-Lite Co. v. Skeel, 182 Ind. 583, 600, 601; Newcomb v. Boston Protective Dept., 146 Mass. 596; Bourne v. Whitman, 209 Mass. 155, 163). Whether the omission of an absolute duty, not willfully or heedlessly, but through unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into which we need not enter, for it does not touch the case before us. There may be times, when if jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must be kept distinct in speech and thought (Pollock Torts [10th ed.], p. 458; Clark & Linseil Torts [6th ed.], p. 493; Salmond Jurisprudence [5th ed.], pp. 351, 363; Texas & Pac. Ry. Co. v. Rigsby, supra, p. 43; Chicago, B. & Q. Ry. Co. v. U. S., 220 U. S. 559). In the conditions here present they come together and coalesce. A rule less rigid has been applied where the one who complains of the omission is not a member of the class for whose protection the safeguard is designed (Amberg v. Kinley, supra; Union Pac. Ry. Co. v. McDonald, 152 U. S. 262, 283; Kelley v. N. Y. State Rys. 207 N. Y. 342; Ward v. Hobbs, 4 App. Cas. 13). Some relaxation there has also been where the [169] safeguard is prescribed by local ordinance, and not by statute (Massoth v. D. & H. C. Co., 64 N. Y. 524, 532; Knupfle y. Knickerbocker Ice Co., 84 N. Y. 488). Courts have been reluctant to hold that the police regulations of boards and councils and other subordinate officials create rights of action beyond the specific penalties imposed. This has led them to say that the violation of a statute is negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance, however, like a statute, is a law within its sphere of operation, and so the distinction has not escaped criticism (Jetter v. N. Y. & H. R. R. Co., supra; Knupfle v. Knickerbocker Ice Co., supra; Newcomb v. Boston Protective Dept., supra; Prest-O-Lite Co. v. Skeel, supra). Whether it has become too deeply rooted to be abandoned, even if it be thought illogical, is a question not now before us. What concerns us at this time is that even in the ordinance cases, the omission of a safeguard prescribed by statute is put upon a different plane, and is held not merely some evidence of negligence, but negligence in itself (Massoth v. D. & H. Canal Co., supra; and cf. Cordell v. N. Y. C. & H. R, R. R. Co., supra). In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. They were allowed to "consider the default as lightly or gravely" as they would (THOMAS, J., in the court below). They might as well have been told that they could use a like discretion in holding a master at fault for the omission of a safety appliance prescribed by positive law for the protection of a workman (Scott v. International Paper Co., 204 N. Y. 49; Fitzwater v. Warren, 206 N. Y. 355; Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33). Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes [170] under the statute to another. It is error to tell them that they have. The omission of these lights was a wrong, and being wholly unexcused was also a negligent wrong. No license should have been conceded to the triers of the facts to find it anything else.

We must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and the injury. A defendant who travels without lights is not to pay damages for his fault unless the absence of lights is the cause of the disaster. A plaintiff who travels without them is not to forfeit the right, to damages unless the absence of lights is at least a contributing cause of the disaster. To say that conduct is negligence is not to say that it is always contributory negligence. "Proof of negligence in the air, so to speak, will not do" (Pollock Torts [10th ed.], p. 472). We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals (Lambert v. Staten Island R. R. Co., 70 N. Y. 104,109,110; Walsh v. Boston & Maine Railroad, 171 Mass. 52, 58; The Pennsylvania, 19 Wall. 125, 136, 137; Fisher v. Village of Cambridge, 133 N. Y. 527, 532). If nothing else is shown to break the connection, we have a case, prima facie sufficient, of negligence contributing to the result. There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, by an electric lamp, and by the lights of the approaching car. Her position is that if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen [171] it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference, but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told not only that the omission of the lights was negligence, but that it was "prima facie, evidence of contributory negligence," i.e., that it was sufficient in itself unless its probative force was overcome (THOMAS, J., in court below) to sustain a verdict that the decedent was at fault (Kelly v. Jackson, 6 Pet. 622, 632). Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless speed that warning would of necessity have been futile. Nothing of the kind is shown. The collision was due to his failure to see at a time when sight should have been aroused and guided by the statutory warnings. Some explanation of the effect to be given to the absence of those warnings, if the plaintiff failed to prove that other lights on the car or the highway took their place as equivalents, should have been put before the jury. The explanation was asked for, and refused.

We are persuaded that the tendency of the charge and of all the rulings following it, was to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent's fault. Errors may not be ignored as unsubstantial when they tend to such an outcome. A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced [172] to the level of cautions, and the duty to obey attenuated into an option to conform.

The order of the Appellate Division should be affirmed, and judgment absolute directed on the stipulation in favor of the defendant, with costs in all courts.

HOGAN, J. (dissenting).

Upon the trial of this action, a jury rendered a verdict in favor of the plaintiff. Defendant appealed from the judgment entered thereon and an order made denying an application to set aside the verdict and for a new trial to the Appellate Division. The latter court reversed the judgment on the law and granted a new trial on questions of law only, the court having examined the facts and found no error therein. The decision thus made was equivalent to a determination by the court that it had passed upon the question of the sufficiency of the evidence and as to whether the verdict rendered by the jury was against the weight of evidence. The effect of that decision was that the order denying the motion to set aside the verdict and grant a new trial was upon the facts properly denied. (Judson v. Central Vt. R. R. Co., 158 N. Y. 597, 602.) A jury and the Appellate Division having determined that upon the facts developed on the trial of the action, the plaintiff was entitled to recover, in view of certain statements in the prevailing opinion, and for the purpose of explanation of my dissent, I shall refer to the facts which were of necessity found in favor of plaintiff and approved by the Appellate Division.

The following facts are undisputed. Leading from Broadway in the village of Tarrytown, Westchester county, is a certain public highway known as Neperham road, which runs in an easterly direction to East View, town of Greenburg. The worked portion of the highway varies in width from twenty-one and one-half feet at the narrowest point a short distance easterly of the place of the collision hereinafter mentioned, to a width of [173] twenty-seven and one-half feet at the point where the collision occurred.

On the evening of August 21st, 1915, the plaintiff, together with her husband, now deceased, were seated in an open wagon drawn by a horse. They were traveling on the highway westerly towards Tarrytown. The defendant was traveling alone on the highway in the opposite direction, viz., from Tarrytown easterly towards East View in an automobile which weighed about three thousand pounds, having a capacity of seventy horse power, capable of developing a speed of seventy-five miles an hour. Defendant was driving the car.

A collision occurred between the two vehicles on the highway at or near a hydrant located on the northerly side of the road. Plaintiff and her husband were thrown from the wagon in which they were seated. Plaintiff was bruised and her shoulder dislocated. Her husband was seriously injured and died as a result of the accident.

The plaintiff, as administratrix, brought this action to recover damages arising by reason of the death of her husband caused as she alleged solely by the negligence of defendant in operating, driving and running the automobile at a high, unlawful, excessive and unsafe rate of speed, 'in failing to blow a horn or give any warning or signal of the approach of said automobile and in operating, driving and riding said automobile at said time and place upon his left-hand or wrongful side of said road or highway, thereby causing the death of her husband. Defendant by his answer admitted that he was operating the automobile, put in issue the remaining allegations of the complaint and affirmatively alleged that any injury to plaintiff's intestate was caused by his contributory negligence.

As indicated in the prevailing opinion, the manner in which the accident happened and the point in the highway where the collision occurred are important facts in this case, for as therein stated: "The case against him (defend [174] ant) must stand, therefore, if at all, upon the divergence of his course from the center of the highway." The evidence on behalf of plaintiff tended to establish that on the evening in question her husband was driving the horse at a jogging gait along on their right side of the highway near the grass which was outside of the worked part of the road on the northerly side thereof; that plaintiff observed about one hundred twenty feet down the road the automobile operated by defendant approaching at a high rate of speed, two searchlights upon the same, and that the car seemed to be upon her side of the road; that the automobile ran into the wagon in which plaintiff and her husband were seated at a point on their side of the road while they were riding along near the grass. Evidence was also presented tending to show that the rate of speed of the automobile was eighteen to twenty miles an hour and the lights upon the car illuminated the entire road. The defendant was the sole witness on the part of the defense upon the subject under consideration. His version was: "Just before I passed the Tarrytown Heights Station, I noticed a number of children playing in the road. I slowed my car down a little more than I had been running. I continued to drive along the road, probably I proceeded along the road three hundred or four hundred feet further, I do not know exactly how far, when suddenly there was a crash and I stopped my car as soon as I could after I realized that there had been a collision. Whether I saw anything in that imperceptible fraction of space before the wagon and car came together I do not know. I have an impression, about a quarter of a second before the collision took place, I saw something white cross the road and heard somebody call 'whoa' and that is all I knew until I stopped my car. * * * My best judgment is I was travelling about twelve miles an hour. * * * At the time of the collision I was driving on the right of the road."

[175] The manner in which and the point in the highway where the accident occurred presented a question of fact for a jury. If the testimony of defendant was accredited by the jury, plaintiff and her intestate having observed the approaching automobile deliberately, thoughtlessly or with an intention to avoid the same left their side of the road at a moment when an automobile was rapidly approaching with lights illuminating the road, to cross over to the side of the highway where the automobile should be, and as claimed by defendant was traveling, and thereby collided with the same, or, on the contrary, defendant was driving upon his left side of the road and caused the collision. The trial justice charged the jury fully as to the claims of the parties and also charged that the plaintiff in her complaint specifically alleged the acts constituting negligence on the part of defendant (amongst which was that he was driving on the wrong side of the road thereby causing the death of her husband, the alleged absence of signals having been eliminated from the case) and in order to recover the plaintiff must show that the accident happened in the way and in the manner she has alleged in her complaint. "It is for you to determine whether the defendant was driving on the wrong side of the road at the time he collided with the buggy; whether his lights did light up the road and the whole road ahead of him to the extent that the buggy was visible, and so, if he negligently approached the buggy in which plaintiff and her husband were driving at the time. If you find from the evidence here, he was driving on the wrong side of the road and that for this reason he collided with the buggy which was proceeding on the proper side, or if you find that as he approached the buggy the road was so well lighted up that he saw or should have seen the buggy and yet collided with it then you may say, if you so find, that the defendant was careless and negligent." No exception was taken by the defendant to that charge, but at the [176] close of the charge counsel for defendant made certain requests to charge upon the subject as follows:

"(1) If the jury find that Mr. Martin was guilty of any negligence, no matter how slight, which contributed to the accident, the verdict must be for defendant.

"(2) In considering the photographs and consideration of which side of the vehicle, wagon, was damaged, that the jury have no right to disregard physical facts, and unless they find the accident happened as described by Mrs. Martin and Mrs. Cain, the verdict must be for the defendant.

"(3) The plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses, that the verdict of the jury must be for defendant.

"(4) It was the duty of Mr. Martin to keep to the right."

Each one of the several requests was charged, and in addition the trial justice charged that if the deceased, Mr. Martin, collided with the automobile while the wagon was on the wrong side of the road, the verdict must be for defendant.

The principal issue of fact was not only presented to the jury in the original charge made by the trial justice, but emphasized and concurred in by counsel for defendant. 

The prevailing opinion in referring to the accident and the highway at the point where the accident occurred describes the same in the following language: "At the point of the collision, the highway makes a curve. The car was rounding the curve when suddenly it came upon the buggy emerging the defendant tells us from the gloom." Such in substance was the testimony of the defendant but his version was rejected by the jurors and the Appellate Division, and the evidence in the record is ample to sustain a contrary conclusion. As to the statement that the car was rounding "a curve," [177] two maps made by engineers from actual measurements and surveys for defendant were put in evidence by counsel for plaintiff. Certain photographs made for the purposes of the trial were also before the jury. I think we may assume that the jurors gave credence to the maps and actual measurements rather than to the photographs and failed to discover therefrom a curve of any importance or which would interfere with an unobstructed view of the road. As to the "buggy emerging the defendant tells us from the gloom," evidence was adduced by plaintiff tending to show that the searchlights on defendant's car lighted up the entire roadway to the extent that the vehicle in which plaintiff and her husband were riding was visible, that the evening was not dark, though it appeared as though a rainfall might be expected. Some witnesses testified it was moonlight. The doctor called from Tarrytown who arrived within twenty minutes after the collision, testified that the electric lights all along the highway were burning as he passed over the road. The width of the worked part of the highway at the point of the accident was twenty-seven and one-half feet. About twenty-five feet westerly on the southerly side was located an electric light which was burning. A line drawn across the highway from that light to the point of the accident would be about forty-two feet. One witness called by plaintiff lived in a house directly across the highway from the point of the accident. Seated in a front room it was sufficiently light for her to see plaintiff's intestate when he was driving along the road at a point near a telegraph pole which is shown on the map some ninety or one hundred feet easterly of the point of the accident, when she observed him turn his horse into the right towards the fence. Soon thereafter she heard the crash of the collision and immediately went across the highway and found Mr. Martin in a sitting position on the grass. A witness called by the [178] defendant testified that she was on the stoop of her house, which is across the highway from the point of the accident and about forty feet distant from said point and while seated there she could see the body of Mr. Martin. While she testified the evening was dark, the lights on the highway were sufficient to enable her to see the body of Mr. Martin lying upon the grass forty feet distant. The defendant upon cross-examination was confronted with his testimony given before the coroner where he testified that the road was "fairly light."

The facts narrated were passed upon by the jury under a proper charge relating to the same, and were sustained by the Appellate Division. The conclusions deducible therefrom are: (A) Defendant was driving his car upon the wrong side of the road. (B) Plaintiff and her intestate were driving a horse attached to the wagon in which they were seated upon the extreme right side of the road. (C) The highway was well lighted. The evening was not dark. (D) Defendant collided with the vehicle in which plaintiff and her husband were riding and caused the accident.

I must here note the fact that concededly there was no light upon the wagon in which plaintiff and her husband were riding, in order that I may express my views upon additional phrases in the prevailing opinion. Therein it is stated: "There may indeed be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous." I am in accord with that statement, but I dissent from the suggestion we may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing the inference that if defendant did not see the buggy thus illumined it might reasonably infer that he would not have seen it anyway. Further the opinion states: "Here, on the undisputed facts, lack of vision, whether excusable or not, was the cause of the disaster. The defendant may have been negligent in swerving from the center of the road, but he [179] did not run into the buggy purposely, nor was he driving while intoxicated, nor was he going at such a reckless rate of speed that warning would of necessity be futile. Nothing of the kind is shown." As to the rate of speed of the automobile, the evidence adduced by plaintiff's witnesses was from eighteen to twenty miles an hour, as "very fast," further that after the collision the car proceeded one hundred feet before it was stopped. The defendant testified that he was driving about twelve miles an hour, that at such rate of speed he thought the car should be stopped in five or six feet and though he put on the foot brake he ran twenty feet before he stopped. The jury had the right to find that a car traveling at the rate of twelve miles an hour which could be stopped within five or six feet, and with the foot brake on was not halted within one hundred feet must at the time of the collision have been running "very fast" or at a reckless rate of speed, and, therefore, warning would of necessity be futile. No claim was made that defendant was intoxicated or that he purposely ran into the buggy. Nor was proof of such facts essential to plaintiff's right to recover. This case does not differ from many others wherein the failure to exercise reasonable care to observe a condition is disclosed by evidence and properly held a question of fact for a jury. In the earlier part of the prevailing opinion, as I have pointed out, the statement was: "The case against him (defendant) must stand or fall, if at all, upon the divergence of his course from the center of the highway." It would appear that "lack of vision whether excusable or not was the cause of the disaster" had been adopted in lieu of divergence from the center of the highway.  I have, therefore, discussed divergence from the center of the road. My examination of the record leads me to the conclusion that lack of vision was not on the undisputed facts the sole cause of the disaster. Had the defendant been upon his right side of the road, upon the plaintiff's theory he might have been driving reck [180] lessly and the plaintiff and her intestate being near to the grass on the northerly side of a roadway twenty-seven feet and upwards in width the accident would not have happened and the presence of or lack of vision would not be material. If, however, as found by the jury, defendant was wrongfully on plaintiff's side of the road and caused the accident, the question of whether or not under the facts in the exercise of reasonable care he might have discovered his error and the presence of plaintiff and thereupon avoid the collision was for the jury. The question was presented whether or not as defendant approached the wagon the roadway was so well lighted up that defendant saw or in the exercise of reasonable care could have seen the wagon in time to avoid colliding with the same, and upon that proposition the conclusion of the jury was adverse to defendant, thereby establishing that the lights of the car on the highway were equivalent to any light which if placed upon the wagon of plaintiff would have aroused the attention of defendant, and that no causal connection existed between the collision and absence of a light on the wagon.

At the close of the charge to the jury the trial justice was requested by counsel for defendant to charge "that the failure to have a light on plaintiff's vehicle is prima facie evidence of contributory negligence on the part of plaintiff." The justice declined to charge in the language stated, but did charge that the jury might consider it on the question of negligence, but it was not in itself conclusive evidence of negligence. For the refusal to instruct the jury as requested, the judgment of the Trial Term was reversed by the Appellate Division.

The request to charge was a mere abstract proposition. Even assuming that such was the law, it would not bar a recovery by plaintiff unless such contributory negligence was the proximate and not a remote contributory cause of the injury. (Laidlaw v. Sage, 158 N. Y. 73; Rider v. Syracuse R. T. Ry. Co., 171 N. Y. 139, and cases cited.) The [181] request to charge excluded that important requisite. The trial justice charged the jury that the burden rested upon plaintiff to establish by the greater weight of evidence that plaintiff's intestate's death was caused by the negligence of the defendant and that such negligence was the proximate cause of his death; that by "proximate cause" is meant that cause without which the injury would not have happened, otherwise she could not recover in the action. In the course of his charge the justice enlarged on the subject of contributory negligence, and in connection therewith read to the jury the provisions of the Highway Law and then charged that the jury should consider the absence of a light upon the wagon in which plaintiff and her intestate were riding and whether the absence of a light on the wagon contributed to the accident. At the request of counsel for defendant, the justice charged that, if the jury should find any negligence on the part of Mr. Martin, no matter how slight, contributed to the accident, the verdict must be for the defendant. I cannot concur that we may infer that the absence of a light on the front of the wagon was not only the cause but the proximate cause of the accident. Upon the evidence adduced upon the trial and the credence attached to the same, the fact has been determined that the accident would have been avoided had the defendant been upon his side of the road or attentive to where he was driving along a public highway, or had he been driving slowly, used his sense of sight and observed plaintiff and her intestate as he approached them, they being visible at the time. The defendant's request to charge which was granted, "that plaintiff must stand or fall on her claim as made, and if the jury do not find that the accident happened as substantially claimed by her and her witnesses that the verdict of the jury must be for the defendant," presented the question quite succinctly. The jury found that the accident happened as claimed by the plaintiff and her witnesses and we cannot surmise or [182] infer that the accident would not have happened had a light been located on the wagon.

In my opinion the charge of the trial justice upon the subject of proximate cause of the accident was a full and complete statement of the law of the case, especially when considered in connection with the charge that the slightest negligence on the part of the intestate contributing to the accident would require a verdict for defendant.

It would not be profitable to refer to and analyze the numerous decisions of this court upon the effect of a violation of an ordinance or a statute. A large number of cases were cited in the opinions in the Amberg case. That case was decided upon the principle that where a duty is imposed by statute and a violation of the duty causes an injury, such violation is evidence of negligence as matter of law. That proposition was clearly discussed in the Amberg case (Amberg v. Kinley, 214 N. Y. 531) as will appear by the result therein. The doctrine of causal connection therein declared was but a reiteration of the rule laid down in Willy v. Mulledy (78 N. Y, 3.10); Briggs v. N.Y.C. & H.R.R.R. Co. (72 N. Y. 26), and numerous other cases.

The charge requested and denied in this case was in effect that a failure t o have a light upon the intestate's wagon was as matter of law such negligence on his part as to defeat the cause of action irrespective of whether or not such negligence was the proximate cause of the injury. My conclusion is that we are substituting form and phrases for substance and diverging from the rule of causal connection.

HISCOCK, Ch. J., POUND, MCLAUGHLIN, ANDREWS and ELKUS, JJ., concur with CARDOZO, J.; HOGAN, J., reads dissenting opinion.

Order affirmed.

MAKIA L. PLATZ, Respondent,

v.

THE CITY OF COHOES, Appellant.

89 N.Y. 219

Where, through culpable omission of duty upon the part of the municipal corporation, a city street has become obstructed, and in consequence a traveler upon the street is injured, it is no defense to an action against [220] the municipality to recover damages that the accident happened upon Sunday, and that the person injured was, in traveling on that day, violating the statute relating to the "observance of Sunday." (1 R.S. 676, §70.)

The courts may not add to the penalty imposed by that statute a a forfeiture of the right to indemnity for an injury resulting from defendant's negligence, and the violation of the statute cannot be regarded as the immediate cause of the injury.

Johnson v. Town of Irasburgh (47 Vt. 28 [19 Am. Rep. 111]), Holcomb v. Town of Danby (51 Vt. 428), Bosworth v. Swansey (10 Metc. 363), Jones v. Andover (10 Allen, 18), disapproved.

(Argued April 19, 1882; decided May 30, 1882.)

APPEAL from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made January 25, 1881, which affirmed a judgment in favor of plaintiff, entered upon a verdict.

This action was brought to recover damages for injuries alleged to have been caused by defendant's negligence.

The material facts are stated in the opinion.

G. L. Stedman for appellant. The court erred in refusing to nonsuit, upon the ground that the plaintiff met with this accident while violating the Sunday law. (3 R. S. [7th ed.] 1975; Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18; Johnson v. Town of Irasburgh, 47 Vt. 28; Holcomb v. Village of Danby, 51 id. 428; McClary v. Lowell, 44 id. 116; Sutton v. Wauwautosa, 29 Wis. 21; Merritt v. Earle, 29 N. Y. 115, 120; Carroll v. Staten Island R. R. Co., 58 id. 126, 133, 135, 137.) Rufus W. Peckham for respondent. There was no error in refusing to charge that, if the plaintiff was riding in violation of the Sunday law, she could not recover. (Carroll v. Railway Co., 58 N. Y. 126; Merritt v. Earle, 29 id. 115; Etchberry v. Leville, 2 Hilt. 40; Wood v. Erie Railway Co., 72 N. Y. 196; Winspear v. Ins. Co., L. R., 6 Q. B. Div. 42; Lawrence v. Ins. Co., 7 id. 216; Reynolds v. Ins. Co., 22 L. T. 820; 18 Weekly Rep. 1141; Masterson v. R. R. Co., 84 N. [221] Y. 247, 254; Baldwin v. Barney, 12 R. I. 392; Woodman v. Hubbard, 25 N. H. 67; Sutton v. Town, etc., 29 Wis. 21; Mahoney v. Cook, 26 Penn. St. 342; Schmidt v. Humphrey,

48 Iowa, 658; S. C, 30 Am. Rep. 414, 417; Railroad Co., etc., v. Tow-boat Co., 23 How. [U. S.] 209; 20 Alb. L. J. 336; 14 Am. Law Reg. 547, 554.) Traveling on Sunday was not unlawful by the common law. (Batsford v. Every, 44 Barb. 618, and note, 620.) The penalty given by the statute can alone be enforced, and a further penalty of submission to wrong without any power or legal right to successfully complain cannot be added to the one provided by statute. (People v. Hislop, 77 N. Y. 331.)

DANFORTH, J.

The defendant made an excavation in one of its public streets, and neither removing or leveling the earth taken therefrom, left it in the way. While the respondent was riding with her husband, the carriage in which they were was, without carelessness on the part of either, upset by the pile of earth, and she was injured. That the street was defective through the culpable omission of duty on the part of the defendant is not denied, but the accident happened on Sunday, and the learned counsel for the appellant claims that it owed no duty to the plaintiff to keep its streets in repair on that day, because it did not appear that she was then traveling "either from necessity or charity," nor for any purpose permitted by the law. It is plain, therefore, that she was violating the statute relating to the "observance of Sunday" (1 R. S. 628, title 8, chap. 20, art. 8, § 70), but we do not perceive how that fact relieves the defendant.

It imposed an obligation upon the plaintiff to refrain from traveling, and for its violation prescribed a forfeiture of one dollar. It also declares that upon complaint made before a magistrate, and conviction had, that sum might be collected by distress and sale of the goods and chattels of the offender, or if sufficient could not he found, she might be "committed to the common jail for not less than one or more than three days." The statute goes no further, and we are aware of no principle upon which [222] it can be held that the right to maintain an action in respect of special damage resulting from the omission of a defendant to perform a public duty is taken away because the person injured was at the time disobeying a positive law. The courts are required to construe a penal statute strictly, and having before him, for judgment, an alleged violation of the Sunday law, Lord MANSFIELD said: "If the act of Parliament gives authority to levy but one penalty, there is an end of the question, for there is no penalty at common law." (Crepps v. Durden, 2 Cowper, 640.) This was a proceeding to enforce the statute, but in Carroll v. Staten Island R. R. Co. (58 N.Y. 126; 17 Am. Rep. 221), an action by a passenger against a carrier to recover damages for injuries received through its carelessness, this court held that the fact, "that the plaintiff was at the time of the injury traveling contrary to the statute," was no defense to the action. The policy of the statute and its limitations were then considered, and the court refused to add to the penalty imposed by it a forfeiture of the right to indemnity for an injury resulting from the defendant's negligence.

The Sunday law received a similar construction in Phila., Wil. & Bait. R. R. Co. v. Phil. & Havre de Grace Steam Towboat Co. (23 How. U. S. Sup. Ct. Rep. 209), the court holding that the offender, the plaintiff in the action, was liable to the fine or penalty imposed thereby, and nothing more, saying, "We do not feel justified, therefore, on any principles of justice, equity, or of public policy, in inflicting an additional penalty of $7,000, on the libelants, by way of set-off, because their servants may have been subject to a penalty of twenty-shillings each for breach of the statute." To the same effect is Baldwin v..Barney (12 R. I. 392; 34 Am. Rep. 670).

It may indeed be said that if the plaintiff had obeyed the law, remained at home, and not traveled, the accident would not have happened. That is not enough. The same obedience to the law would have saved the plaintiffs in the cases just cited. It must appear that the disobedience contributed to the accident, or that the statute created a right in the defendant, which it could enforce. But the object of the statute is the [223] promotion of public order, and not the advantage of individuals. The traveler is not declared to be a trespasser upon the street, nor was the defendant appointed to close it against her. In such an action the fault which prevents a recovery is one which directly contributes to the accident; as carelessness in driving, either a vicious or unmanageable horse, or at an improper rate of speed, or without observation of the road, or in an insufficient vehicle, or with a defective harness, or in a state of intoxication, or under some other condition of driver, horse or carriage, which may be seen to have brought about the injury.

It may doubtless be said that if the plaintiff had not traveled, she would not have been injured; and this will apply to nearly every case of collision or personal injury from the negligence or willful act of another. Had the injured party not been present he would not have been hurt. But the act of travel is not one which usually results in injury. It, therefore, cannot be regarded as the immediate cause of the accident, and of such only the law takes notice. At common law the act was not unlawful, and the plaintiff was still under its protection, and may resort to it against a wrong-doer by whose act she was injured. This has been held in many cases where the person injured was at the time doing an act prohibited by the city ordinance or general statute (Steele v. Burkhardt, 104 Mass. 59; Welch v. Wesson, 6 Gray, 505; Morris v. Litchfield, 35 N. H. 271), and even violating the law now in question, or one similar to it. Carroll v. Staten Island Co., and Phila., Wil. & Bait. R. R.Co. v. Phila. & Havre de Grace Towboat Co. have already been referred to. (See, also, Schmid v. Humphrey, 48 Iowa, 652; 30 Am. Rep. 414.)

Sutton v. The Town of Wauwatosa (29 Wis. 21; 9 Am. Rep. 534) is in point, not only in its circumstances but in the relations of the parties. The plaintiff was driving his cattle to market on Sunday, and they were injured by the breaking down of a defective bridge which the defendant, through negligence, had failed properly to maintain. The Sunday statute was relied upon, but the town was held liable. In this State a municipal corporation is regarded as a legal entity, and re [224] sponsible for its omission to perform corporate duties, to the same extent as a natural person would be under the same circumstances. (Dillon on Municipal Corporations, § 778; Bailey v. The Mayor, 3 Hill, 531.) The authorities, therefore, which deny to an individual through whose negligence another has been injured immunity from the consequences of his wrong, because the injured person was violating the law in question, apply here. Many of them are referred to in the cases named above and need not again be cited.

There are, as the counsel for the appellant contends, authorities the other way. Decisions by very eminent and learned courts. In Vermont. (Johnson v. Town of Irasburgh, 47 Vt. 28; 19 Am. Rep. 111; Holcomb v. Town of Danby, 51 Vt. 428.) In Massachusetts. (Bosworth v. Swansey, 10 Metc. 363; Jones v. Andover, 10 Allen, 18.) And immunity is also given by that court, under the same statute, to a railroad corporation through whose negligence the plaintiff was injured. (Smith v. Boston and Maine R. R., 120 Mass. 490; 21 Am. Rep. 538.) But the decisions already made by us (Merrittv. Earle, 29 K Y. 115; Wood v. Erie Railway Co., 72 id. 196; 28 Am. Rep. 125; Carroll v. Staten Island R. R. Co., supra) are in the contrary direction, and are sustained, we think, by reasons of justice and public policy. In Baldwin v. Barney (supra) a question arising under the Sunday laws of Massachusetts came before the court in an action by one injured in that State, while traveling on Sunday, by the reckless driving of one also traveling. On the trial the plaintiff was nonsuited, but on appeal the Massachusetts cases are reviewed and disapproved, and after a very deliberate discussion of the decisions  in that and other States the court held that the defendant could not show the illegality of the plaintiff's act as a defense, and the nonsuit was set aside. There will be seen great conflict in decided cases, but the weight of authority seems to favor the conclusion already reached by us. (Cooley on Torts, § 157; Wharton on Negligence, § 331.)

This result disposes of the appellant's objections, for they all rest on the assumption that as one could not lawfully travel on [225] Sunday, there was negligence either of the plaintiff or her husband, and if of the latter, that it was to be imputed to her. It is indeed suggested by the learned counsel for the appellant, that before the accident the husband "had been drinking," and "at the time of the accident was driving a fast horse recklessly." But if it is intended to present this view as ground for reversal it is not tenable, for neither at the close of the plaintiff's case, nor at the end of the testimony when a dismissal of the complaint was asked for, was this subject alluded to. I have, moreover, carefully examined the evidence referred to, and find none which would warrant the defense, or permit a jury to find upon the affirmative of such a proposition. The husband had indeed "drank beer," but the quantity is not stated, nor does it seem to have affected him. Asked by the defendant's counsel, "had you drank any beer on that day?" answers: "Yes, sir." "Who did you drink with?" answers, "Mr. Webber." And as for the rate of speed at which he was driving, he says: "at an ordinary slow jog, just off a walk." and we are referred to no evidence which shows the contrary.

It is not necessary to consider whether, if a different condition had been established, the negligence of the husband in those respects could have been imputed to the wife. The defense relied upon, was the Sunday law, and as it is not available, the judgment appealed from should be affirmed with costs.

All concur, except FINCH, J., taking no part, and TRACY, J., absent.

Judgment affirmed.

242 N.Y. 176

CLARA E. BROWN, Respondent,

v.

FRANCIS T. SHYNE, Appellant.

Brown v. Shyne, 214 App. Div. 755, reversed.

(Argued January 20, 1926; decided February 24, 1926.)

APPEAL, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 25, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.

Leo O. Coupe and James Coupe for appellant. The trial court erred in submitting to the jury the proposition that the failure of the defendant to obtain a license to practice medicine and surgery in New York was evidence that defendant negligently performed a chiropractic adjustment on the plaintiff when there was no evidence to show that it was the proximate cause of the injury complained of. (Clark v. Doolittle, 205 App. Div. G97; Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Weinberger v. Kratzenstein, 71 App. Div. 155; Hyde v. McCreery, 145 App. Div. 729; Silman v. Lewis, 49 N. Y. 383; Kock v. Fox, 71 App. Div. 288; Brazil v. Isham, 12 N. Y. 9; N. Y. C. Ins. Co. v. Nat. Prot Ins. Co., 20 Barb. 486; Newell v. Salmons, 22 Barb. 647; Clark v. Post, 113 N. Y. 17; Hall v. U. & Reflector Co., 30 Hun, 375; Antowill v. Friedman, 197 App. Div. 230; Brown v. Goffe, 125 N. Y. 458.)

William R. Lee for respondent. The trial court committed no error prejudicial to defendant in his charge to the jury on the proposition of the effect of his failure to possess a license to practice medicine in New York State on the question of negligence. (Knupfle v. Knickerbocker Ice Co., 84 N. Y. 488; Cummings v. R. R. Co., 104 N. Y. 669; Donnelly v. Rochester, 166 N. Y. 315; Meyers v. Barrett, 167 App. Div. 170; Massoth v. D. & H. C. Co., 64 N. Y. 532; McRickard v. Flint, 114 N. Y. 222; Marino v. Lehmaier, 173 N. Y. 530; Amberg v. Kinley, 214 [178] N. Y. 535; Beisegel v. N. Y. C. R. R. Co., 14 Abb. Pr. [N. S.] 29; Hoffman v. U. F. Co., 47 N. Y. 176; Platz v. City of Cohoes, 89 N. Y. 219; Martin v. Herzog, 228 N. Y. 164.)

LEHMAN, J. The plaintiff employed the defendant to give chiropractic treatment to her for a disease or physical condition. The defendant had no license to practice medicine, yet he held himself out as being able to diagnose and treat disease, and under the provisions of the Public Health Law (Cons. Laws, eh. 45) he was guilty of a misdemeanor. The plaintiff became paralyzed after she had received nine treatments by the defendant. She claims, and upon this appeal we must assume, that the paralysis was caused by the treatment she received. She has recovered judgment in the sum of $10,000 for the damages caused by said injury.

The plaintiff in her complaint alleges that the injuries were caused by the defendant's negligence. If negligence on the part of the defendant caused the injury, the plaintiff may recover the consequent damages. Though the defendant held himself out, and the plaintiff consulted him, as a chiropractor and not as a regular physician, he claimed to possess the skill requisite for diagnosis and treatment of disease, and in the performance of what he undertook to do he may be held to the degree of skill and care which he claimed to possess. At the trial the plaintiff gave testimony in regard to the manner in which she was treated. She supplemented this testimony by evidence that the treatment was not in accordance with recognized theory or practice, that it produced the injury which followed and that a person qualified to treat disease should have foreseen that the treatment might have such result. Though her testimony was contradicted, the jury might well have resolved the conflict in her favor, and if the only question submitted to the jury had been whether or not this evidence showed that [179] plaintiff's injury was caused by the defendant's negligence, the defendant could not complain of any substantial error at the trial. Indeed, it would seem that in some respects the rulings of the trial judge may have been too favorable to the defendant.

At the close of the plaintiff's case the plaintiff was permitted to amend the complaint to allege "that in so treating the plaintiff the defendant was engaged in the practice of medicine contrary to and in violation of the provisions of the Public Health Law of the State of New York in such case made and provided, he at the time of so treating plaintiff not being a duly licensed physician or surgeon of the State of New York." Thereafter the trial judge charged the jury that they might bring in a verdict in favor of the plaintiff if they found that the evidence established that the treatment given to the plaintiff was not in accordance with the standards of skill and care which prevail among those treating disease. He then continued: "This is a little different from the ordinary malpractice case, and I am going to allow you, if you think proper under the evidence in the case, to predicate negligence upon another theory. The public health laws of this State prescribe that no person shall practice medicine unless he is licensed so to do by the

Board of Regents of this State and registered pursuant to statute * * *. This statute to which I have referred is a general police regulation. Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff and to adjust the vertebræ in her spine when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent." In so charging the jury that from the violation of the statute [180] the jury might infer negligence which produced injury to the plaintiff, the trial justice in my opinion erred.

The provisions of the Public Health Law prohibiting the practice of medicine without a license granted upon proof of preliminary training and after examination intended to show adequate knowledge, are of course intended for the protection of the general public against injury which unskilled and unlearned practitioners might cause. If violation of the statute by the defendant was the proximate cause of the plaintiff's injury, then the plaintiff may recover upon proof of violation; if violation of the statute has no direct bearing on the injury, proof of the violation becomes irrelevant. For injury caused by neglect of duty imposed by the penal law there is civil remedy; but of course the injury must follow from the neglect.

Proper formulation of general standards of preliminary education and proper examination of the particular applicant should serve to raise the standards of skill and care generally possessed by members of the profession in this State; but the license to practice medicine confers no additional skill upon the practitioner; nor does it confer immunity from physical injury upon a patient if the practitioner fails to exercise care. Here, injury may have been caused by lack of skill or care; it would not have been obviated if the defendant had possessed a license yet failed to exercise the skill and care required of one practicing medicine. True, if the defendant had not practiced medicine in this State, he could not have injured the plaintiff, but the protection which the statute was intended to provide was against risk of injury by the unskilled or careless practitioner, and unless the plaintiff's injury was caused by carelessness or lack of skill, the defendant's failure to obtain a license was not connected with the injury. The plaintiff's cause of action is for negligence or malpractice. The defendant undertook to treat the plaintiff for a physical condition which seemed to require [181] remedy. Under our law such treatment may be given only by a duly qualified practitioner who has obtained a license.

The defendant in offering to treat the plaintiff held himself out as qualified to give treatment. He must meet the professional standards of skill and care prevailing among those who do offer treatment lawfully. If injury follows through failure to meet those standards, the plaintiff may recover. The provisions of the Public Health Law may result in the exclusion from practice of some who are unqualified. Even a skilled and learned practitioner who is not licensed commits an offense against the State; but against such practitioners the statute was not intended to protect, for no protection was needed, and neglect to obtain a license results in no injury to the patient and, therefore, no private wrong. The purpose of the statute is to protect the public against unfounded assumption of skill by one who undertakes to prescribe or treat for disease. In order to show that the plaintiff has been injured by defendant's breach of the statutory duty, proof must be given that defendant in such treatment did not exercise the care and skill which would have been exercised by qualified practitioners within the State, and that such lack of skill and care caused the injury. Failure to obtain a license as required by law gives rise to no remedy if it has caused no injury. No case has been cited where neglect of a statutory duty has given rise to private cause of action where it has not appeared that private injury has been caused by danger against which the statute was intended to afford protection, and which obedience to the statute would have obviated. It is said that in the case of Karpeles v. Heine (227 N. Y. 74) this court held that liability per se arises from breach of the statute which prohibits employment of a child under sixteen years of age, but in that case this court merely decided that the statute was intended to protect the child against danger arising from its own lack of [182] foresight in the course of such employment, and that, therefore, an action against the employer by a child unlawfully employed "for injuries arising in the course of such employment and as the proximate result thereof cannot be defeated by his contributory negligence." In that case the court was considering the legal effect of the proven negligence of the child who was unlawfully employed; only upon proof in the present case of negligence on the part of the chiropractor would any analogy be apparent.

It is said that the trial justice did not charge that plaintiff might recover for defendant's failure to obtain a license but only that failure to obtain a license might be considered "some evidence" of defendant's negligence. Argument is made that even if neglect of the statutory duty does not itself create liability, it tends to prove that injury was caused by lack of skill or care. That can be true only if logical inference may be drawn from defendant's failure to obtain or perhaps seek a license that he not only lacks the skill and learning which would enable him to diagnose and treat disease generally, but also that he lacks even the skill and learning necessary for the physical manipulation he gave to this plaintiff. Evidence of defendant's training, learning and skill and the method he used in giving the treatment was produced at the trial and upon such evidence the jury could base finding either of care or negligence, but the absence of a license does not seem to strengthen inference that might be drawn from such evidence, and a fortiori would not alone be a basis for such inference. Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is logical connection between the proven neglect of statutory duty and the alleged negligence.

Our decision in the case of People v. Meyer (239 N. Y. 608) is not in conflict with these views. The defendant there was charged with causing death by "culpable negligence." Negligence was shown by independent evi [183] dence, but the charge of manslaughter could be sustained only if the defendant's negligence reached beyond the bounds of lack of skill and foresight where civil liability begins to a point where criminal liability is imposed because the negligence is not merely venal but is "culpable," involving fault for which the State may demand punishment. We held that the circumstance that the defendant practiced medicine without those qualifications which the law demands as a prerequisite to practice was relevant and material upon the question whether the defendant's proven negligence was venal or culpable. We did not hold that the absence of license tended to prove negligence itself.

For these reasons the judgments should be reversed and a new trial granted, with costs to abide the event.

CRANE, J. (dissenting). The defendant, is a chiropractic practitioner in Utica, N. Y. The plaintiff, a woman about forty-six years of age, in March of 1923, was his patient. Through treatment received, the plaintiff claims to have become paralyzed, and has brought this action to recover damages. A judgment in her favor has been unanimously affirmed by the Appellate Division, which, however, granted leave to the defendant to come to this court, certifying that in its opinion a question of haw was involved which we should review. At the time mentioned, Miss Brown had been suffering from laryngitis, and went to the defendant's, Dr. Shyne's office for treatment. She went there nine times. It was the last treatment that was injurious.

The theory of the chiropractics is that most, if not all, diseases come from pressure on the nerves caused by vertebra deviating from the normal. The treatment consists in restoring the vertebra which is out of alignment to its proper place to relieve the pressure. This is done by palpitating the spinous processes and pushing or manipulating the vertebrae into place. The chiro [184] practic claims to be able to treat and cure many diseases in this way. One of the defendant's chief experts in this case stated that the treatment consists entirely of adjusting the vertebræ which are found out of alignment to normal position. In this way, he stated, cancer of the stomach and liver can be cured, tuberculosis, smallpox, diphtheria, scarlet fever, diabetes and heart disease. The chiropractic does not believe in the germ theory of disease.

We readily see, therefore, that the chiropractic doctor holds himself out to treat and cure sickness and disease by the readjustment of the spinal column and the proper alignment of the vertebræ.

This was the kind of treatment that the defendant was giving the plaintiff; and the theory accords with the practice, according to the plaintiff's testimony. She says of the ninth treatment, which was the same as the others, but a little harsher: "I lay down on the couch, face downward, and the support was removed from under my abdomen, and he began working on the spine, and from the neck, way down to the waist and back again. He pressed very hard, so that it made me flinch, especially up through the shoulders. One spot was hurt especially bad. It seemed as if it was his thumbs that he was pressing down hard, and that it hurt, it made me flinch. And then he took a hold of my head, both sides of my head, and gave it a very violent turn, twist one way and then back, which gave a very bad snap, more noticeable than any of the other treatments. And it hurt."

"Q. Where was the pain located that you experienced? A. Right from the base of the neck or head, down, midway down the back."

"Q. Had you ever experienced any pain up to that time, in your spinal column before? A. No, sir."

The plaintiff left the doctor's office, returned to her home, and immediately thereafter her arms and limbs became numb and powerless; she was confined to her bed for a period of fifteen weeks, under the care of nurses; [185] was obliged to wear a brace, and has been partially paralyzed ever since.

The Public Health Law (sect. 161) enacts: "No person shall practice medicine, * * * unless licensed by the regents and registered as required by this article."

The practice of medicine is defined by section 160 as follows:

"A person practices medicine within the meaning of this article, except as hereinafter stated, who holds himself out as being able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition, and who shall either offer or undertake, by any means or method, to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition."

By section 174 any person who, not being then lawfully authorized to practice medicine within this State, and so registered, according to law, shall practice medicine in violation of the article, shall be guilty of a misdemeanor.

The defendant was violating this law. He was practicing medicine in this State without a license. He was guilty of a misdemeanor. (People v. Ellis, 162 App. Div. 288; People v. Mulford, 140 App. Div. 716; People v. Meyer, 209 App. Div. 908, affd., 239 N. Y. 608.)

The plaintiff's complaint, as amended on the trial, alleged the negligence of the defendant, and his violation of the Public Health Law. The defendant upon the trial and his witnesses testified that his treatment of vertebræ alignment was according to the established practice and methods of chiropractors, and that by such treatment it was impossible to cause the plaintiff's injuries. There was some evidence to show that the defendant may have been unusually severe and harsh.

The charge of the court to the jury treated the case as one in negligence, and stated the law as applicable to duly licensed physicians, that is, that they were bound to [186] exercise that degree of care and skill generally possessed by members of the profession in the locality where the doctor practiced. The defendant's negligence, he stated, would consist in failing to meet this standard. He further stated to the jury the above requirements of the Public Health Law, and charged: "Its violation, and it has been violated by the defendant, is some evidence, more or less cogent, of negligence which you may consider for what it is worth, along with all the other evidence in the case. If the defendant attempted to treat the plaintiff, and to adjust the vertebrae in her spine, when he did not possess the requisite knowledge and skill as prescribed by the statute to know what was proper and necessary to do under the circumstances, or how to do it, even if he did know what to do, you can find him negligent."

This is the part of the charge which is now challenged as being error, requiring a reversal of the judgment. The point is presented that the violation of the Public Health Law by the defendant, and his practicing medicine without a license, had nothing to do with this case; was not competent evidence; and should not have been considered by the jury as some evidence of negligence. With this view I do not agree.

The judge fully and completely charged the jury that the defendant was not liable for any of the plaintiff's injuries unless they were the direct and proximate cause of his acts. The evidence was abundant to prove that the plaintiff's paralysis and injuries resulted from the defendant's manipulation and treatment of her back, neck and head. The jury were justified in finding that whatever he did, whether it were proper or improper, resulted in the plaintiff's painful condition. We start, therefore, the consideration of this point with the fact that the defendant's acts were the direct and proximate cause of the injury. The next question arises as to whether or not the acts were negligent.

[187] As I have stated, the judge charged the jury as if this were the ordinary malpractice case, furnishing for the defendant a standard of the legally authorized physician. It is difficult for me personally to follow this reasoning and the logic of the situation. I think this rule all too liberal to the defendant. What he did was prohibited by law. He could not practice medicine without violating the law. The law did not recognize him as a physician. How can the courts treat him as such? Provided his act, in violation of the law, is the direct and proximate cause of injury, in my judgment he is liable, irrespective of negligence. It seems somewhat strange that the courts, one branch of the law, can hold up for such a man the standards of the licensed physician, while the Legislature, another branch of the law, declares that he cannot practice at all as a physician. The courts thus afford the protection which the Legislature denies.

The judge in this case, however, did not go this far. He charged for the defendant's benefit the ordinary rules of negligence in malpractice cases, and then stated that the violation of the Public Health Law was some evidence of negligence, leaving the whole question to the jury. I t is this much milder form of ruling which is challenged. The defendant must be treated, so the appellant claims, as if he were a duly licensed physician, and in this action for damages, resulting from his act, he is only liable if a duly licensed physician would have been liable. Such is the effect of excluding evidence of the defendant's practicing medicine without a license. If it were competent to prove that he were practicing medicine without a license, the corollary must be true, that such evidence may be considered by the jury as bearing upon the question of his negligence.

What is the rule which is to guide us in determining whether a violation of a statute or ordinance is evidence of negligence? It is no answer to say that the statute [188] provides a penalty, and, therefore, no other consequences can follow. Such is not the law. We are to determine it, as I read the authorities, from the purpose and object of the law, and also from the fact whether a violation of the law may be the direct and proximate cause of an injury to an individual. As was said in Bourne v. Whitman (209 Mass. 155, 166): "It is universally recognized that the violation of a criminal statute is evidence of negligence on the part of the violator, as to all consequences that the statute was intended to prevent. * * * A criminal statute in the usual form is enacted for the benefit of the public. It creates a duty to the public. Every member of the public is covered by the protecting influence of the obligation. If one suffers injury as an individual, in his person or his property, by a neglect of this duty, he has a remedy, not because our general criminal laws are divided in their operation, creating one duty to the public and a separate duty to individuals; but because as one of the public in a peculiar situation, he .suffers a special injury, different in kind from that of the public generally, from the neglect of the public duty."

The prohibition against practicing medicine without a license was for the very purpose of protecting the public from just what happened in this case. The violation of this statute has been the direct and proximate cause of the injury. The courts will not determine in face of this statute whether a faith healer, a patent medicine man, a chiropractor, or any other class of practitioner acted according to the standards of his own school, or according to the standards of a duly licensed physician. The law, to insure against ignorance and carelessness, has laid down a rule to be followed, namely, examinations to test qualifications, and a license to practice. If a man, in violation of this statute, takes his chances in trying to cure disease, and his acts result directly in injury, he should not complain if the law, in a suit for damages, says that [189] his violation of the statute is some evidence of his incapacity.

At this point the appellant cites those cases dealing with the failure of chauffeurs to have a license. The principal case is Clark v. Doolittle (205 App. Div. 697). There are a number of other cases upon his brief, all of which I have examined. It was the claim in these cases that the failure to have a license to run a car absolutely prevented all recovery by the driver for injuries received, although the lack of the license had nothing whatever to do with the defendant's negligence. It is self-evident that the violation of a statute must have something to do with the case; that it must in some way bear upon proximate cause. Even in the Doolittle case it was said: "The fact that the driver was at the time engaged in a violation of some law may have had an important bearing upon plaintiff's right to recover. It may be evidence against him * * * and if the fault lay in such violation may prevent recovery." All the case decided was that such violation was not an absolute bar.

But to proceed with the main discussion. The Public Health Law was intended to guard individual members of the public from the injuries which might result from resorting to unexamined practitioners. The violation of the law in this case has brought about the very thing which the Legislature has tried to prevent. In Dent v. West Virginia (129 U. S. 114, 122) the United States Supreme Court said regarding these Public Health Laws: "Few professions require more careful preparation by one who seeks to enter it than that of medicine. It has to deal with all those subtle and mysterious influences upon which health and life depend, and requires not only a knowledge of the properties of vegetable and mineral substances, but of the human body in all its complicated parts, and their relation to each other, as well as their influence upon the mind. The physician must be able to detect readily the presence of disease, and prescribe [190] appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications. Due consideration, therefore, for the protection of society may well induce the State to exclude from practice those who have not such a license, or who are found upon examination not to be fully qualified."

These words seem quite appropriate to our present Public Health Law. The defendant held himself out as a doctor, able to cure laryngitis. He had an office where his name appeared, as though he were a duly licensed physician. The plaintiff could not tell whether or not the doctor was licensed according to the Health Law; she was not obliged to look up the records before going to him; nor was she expected to understand all the requirements of the Regents. She was one of that public which the law sought to protect by declaring that the so-called doctor was forbidden to do the very thing he did do, and which resulted in injury. Proximate cause in connection with the violation of a city ordinance was before the court in Monroe v. Hartford Street Ry. Co. (76 Conn. 201). The court said: "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."

In recent times the difficulty with these statutes in the courts has been to determine whether the violation [191] was negligence per se, or only some evidence of negligence.  I have not been able to find any case where the violation of a statute or an ordinance was not at least some evidence of negligence, where the violation was the direct and proximate cause of the injury, that is, that the act done resulting in injury, was prohibited, and the aim and purpose of the statute or ordinance was to prevent such injuries by such prohibition. In Willy v. Mulledy (78 N. Y. 310) the charter of the city of Brooklyn imposed a duty upon the owners of tenement houses to have fire escapes thereon. It was said that where a statute imposes a duty upon a citizen, any person having a special interest in the performance thereof may sue for a breach causing him injury. In Massoth v. Delaware & Hudson Canal Co. (64 N. Y. 524) the violation of a city ordinance regulating the speed of trains through the city was taken as some evidence of negligence.

A statute of Colorado required the operators of coal mines to fence the ground around their slack coal so as to prevent loose cattle or horses from having access to such slack pile. A child strayed on an unfenced slack pile, and the owner was held liable. (Union Pacific Railway Co. v. McDonald, 152 U. S. 262.) The court said: "Primarily, that statute was intended for the protection of cattle and horses. But it was not, for that reason, wholly inapplicable to the present case upon the issue as to negligence. * * * ‘The duty is due, not to the city as a municipal body, but to the public, considered as composed of individual persons; and each person specially injured by the breach of the obligation is entitled to his individual compensation, and to an action for its recovery.’ The nonperformance by the railroad company of the duty imposed by statute, of putting a fence around its slack pit, was a breach of its duty to the public, and, therefore, evidence of negligence, for which it was liable in this case, if the injuries in question were, in a substantial sense, the result, of such violation of duty."

[192] The same thing holds true here. The defendant was under an obligation, a command, a duty, not to practice medicine. By failing to heed this command and duty plaintiff received injury. The statute and his breach is at least some evidence of negligence. To the same effect we have Fluker v. Ziegele Brewing Co. (201 N. Y. 40); McRickard v. Flint (114 N. Y. 222).

In his dissenting opinion in Marino v. Lehmaier (173 N. Y. 530, 540) Judge O'BRIEN mentions a number of violations of statutes and ordinances which would not be considered evidence of negligence in the particular case for the reason that the violation of such ordinance or statute did not constitute the proximate cause of the accident, that is, was in no way the cause of it. Quoting from Thompson on Negligence, he gives the rule to be applied, as follows: "And it may be stated as a general proposition, though there may be difficulty in some cases in applying it, that the violation of a statute or municipal ordinance is not of itself a cause of action grounded upon negligence in favor of an individual unless the statute or ordinance was designed to prevent such injuries as were suffered by the individual claiming the damages and often not then, the question depending upon judicial theories and surmises." The Public Health Law was designed to prevent such injuries as were suffered by the plaintiff in this case, through the illegal practice of medicine. Judge O'BRIEN cites the instances of taking fish out of season, of smuggling, as not preventing a recovery for injury inflicted upon the violator. Within this category may be placed the instance of a person injured through negligence while violating the Sunday Law. (Platz v. City of Cohoes, 89 N. Y. 219.) Likewise, the failure to register an automobile was in no way the cause of an accident, and did not prevent recovery for another's negligence. (Hyde v. McCreery, 145 App. Div. 729.)

We now come to three cases holding that the violation of statutes created negligence per se. Amberg v. Kinley [193] (214 N. Y. 531) related to the Labor Law (Cons. Laws, ch. 31), which required fire-escapes on factory buildings. The action was for death caused in a fire, where the factory had no such fire-escapes. This court said: "In a suit upon a cause of action thus given by statute, it is not necessary for the plaintiff to prove negligence on the part of the defendant, because the failure to observe the statute creates a liability per se, or, as is otherwise and with less accuracy sometimes said, is conclusive evidence of negligence. * * * Whether a statute gives a cause of action to a person injured by its violation, or whether it is intended as a general police regulation, and the violation made punishable solely as a public offense ‘must to a great extent depend on the purview of the Legislature in the particular statute and the language which they have there employed.’”

In my judgment there can be no doubt as to the intent of the Legislature in passing the Public Health Law as herein stated by me. It was to prevent injury to people from ignorant and incompetent practitioners, unqualified men. No one can practice unless examined and licensed. That the danger was one to be guarded against; that such legislation was necessary, is apparent in this case.

Karpeles v. Heine (227 N. Y. 74) also related to the Labor Law, which provided that no child under sixteen years should operate a freight or passenger elevator. Here was a prohibition disqualifying certain persons from doing an act, in the same way that the Public Health Law disqualifies unlicensed persons from practicing medicine. This court held the case one of liability per se, following Amberg v. Kinley (supra).

Martin v. Herzog (228 N. Y. 164) related to the Highway Law (Cons. Laws, ch. 25) requiring lights on wagons after sundown. We held that the unexcused omission of the statutory signals was more than some evidence of negligence; it was negligence itself.

[194]In view of these authorities, I am convinced that the plaintiff in this case was a part of that public for whose benefit the Public Health Law in this particular was passed. It was to prevent injury to such as she that the Legislature forbade the unlicensed practice of medicine. The plaintiff was injured through the defendant's disobedience of the law. He was treating her for laryngitis by pushing her vertebra. In pushing her vertebra and twisting her head, that is, by doing the very thing the law said he must not do, he caused paralysis. Thus by these authorities, the plaintiff could prove in connection with his acts that he was practicing medicine without a license, and such violation was, to say the least, some evidence of negligence. This is as far as the trial judge went in charging the jury. Personally, I am of the opinion that where an injury is the direct and proximate result of practicing medicine without a license, a recovery can be had, as for an act negligent per se; but we do not need to go so far in this case.

Could the defendant in this case have sued the plaintiff for his services, and recovered? Clearly he could not have maintained such an action. (Steed v. Henley, 1 Carr. & P. 574; Allison v. Haydon, 4 Bing. [C. P.] 619; Accetta v. Zupa, 54 App. Div. 33, 35.) "We cannot permit a recovery of compensation for doing an act which this statute declares to be a misdemeanor."

We have recently had a case in this court where these principles have been applied (People v. Meyer, 209 App. Div. 908; affd., 239 N. Y. 608). The defendant was there prosecuted for manslaughter, in causing the death of a child about five years of age, through his culpable neglect. The defendant was a chiropractor, and he sought to treat the child for diphtheria. The treatment was the same as given Miss Brown in this case — that is, by the manipulation of the spinal cord. The child died. The defendant was not a licensed physician.

If the defendant was to be measured simply by the [195] standard of licensed physicians, or of his own school, the Public Health Law had nothing to do with the case. Negligence is negligence (the same in civil as in criminal proceedings), and culpable negligence is merely accentuated negligence. The defendant's negligence had to be proved. The prosecution did not rest with merely showing that the defendant was neglectful from the licensed physician's standpoint. The People proved his acts and omissions, and also the fact that the Public Health Law had been violated, that is, that the defendant was illegally practicing medicine. The judge made this an important part of his charge, for he read to the jury section 160 of the Public Health Law, and said: "I charge you, gentlemen, that the practice of chiropractic is practicing medicine under this law as I have read it to you." He then read section 161 of the Public Health Law, and continued as follows: "Now, gentlemen, the charge in this case is not that the defendant violated the provisions of this law. I want that clearly in your minds. It is not brought on that theory. The defendant is not brought into court and is not on trial now for practicing in violation of this statute, for which another penalty is prescribed. That is an entirely separate and distinct offence. The charge in this case is culpable negligence, under the law as I have read it to you; and in connection with that and in reaching your conclusions and coming to your decision you may consider this law that I have just read to you. * * * So, as I have charged you, if the act is in violation of a statute intended and designed to prevent injury to the person and is in itself dangerous — that is, the act itself — and is liable to result in death by reason of omission or commission, and death ensues, then the person may be guilty of culpable negligence."

We affirmed the conviction in that case. The jury were authorized to consider1 the violation of the statute as bearing upon the question of negligence. In this case we also have the question of negligence, and as bearing [196] upon it the judge permitted the jury to consider together with all the other facts the practice of medicine without a license.

The ruling was correct, and the judgments below should be affirmed, with costs.

HISCOCK, Ch. J., POUND and ANDREWS, JJ., concur with LEHMAN, J.; CRANE, J., writes dissenting opinion, in which MCLAUGHLIN, J., concurs; CARDOZO, J., absent.

Judgments reversed, etc.

[440 N.Y.S.2d 739] Appelbaum & Eisenberg, Liberty, for appellants.

John S. McBride, Monticello (Michael Davidoff, Monticello, of counsel), of counsel to Cohen Law Offices, Monticello, attys. of record for respondent.

Before MAHONEY, P. J., and SWEENEY, KANE, CASEY and WEISS, JJ.

MEMORANDUM DECISION.

Cross appeals from an order of the Supreme Court at Special Term, entered October 21, 1980 in Sullivan County, which denied both plaintiff's and defendant's motions for summary judgment.

On August 9, 1978, defendant Mary Jane Gerstheimer, a stenographer employed by the Letchworth Village Developmental Center, drove an automobile owned by her husband, defendant George F. Gerstheimer, to a pharmacy located on the grounds of the Middletown Psychiatric Center. After parking the automobile in front of the pharmacy, she left it unattended with the keys in the ignition. Moments later, Stephen E. Rushink, a resident patient at the facility, drove away in the vehicle and met his death soon thereafter when it left the road and struck a tree.

After issue was joined, plaintiff moved at Special Term for summary judgment contending that there were no triable issues of fact since defendant Mary Jane Gerstheimer violated subdivision (a) of section 1210 of the Vehicle and Traffic Law and that the violation of the statute was the proximate cause of the occurrence. Defendants opposed the motion arguing that subdivision (a) of section 1210 of the Vehicle and Traffic Law is not applicable to the instant case and, assuming it was, that the alleged violation was not the proximate cause of plaintiff's decedent's accident. Defendants also moved for summary judgment to dismiss the complaint. Special Term denied both motions and these appeals ensued.

Subdivision (a) of section 1210, which prohibits a person in charge of a vehicle from leaving it unattended without removing or hiding the key, was enacted to deter theft and injury from the operation of motor vehicles by unauthorized persons (see Banellis v. Yackel, 69 A.D.2d 1013, 416 N.Y.S.2d 151, affd. 49 N.Y.2d 882, 427 N.Y.S.2d 941, 405 N.E.2d 185; 8 N.Y.Jur.2d, Automobiles, § 628, p. 281). In our view, however, its provisions were plainly not designed to protect such unauthorized users from the consequences of their own actions (cf. Imerson v. Benway, 12 A.D.2d 694, 207 N.Y.S.2d 738). That plaintiff's decedent may not have been capable of forming a larcenous intent is irrelevant to our conclusion that he could not have been within the class of persons the enactment was meant to protect. Of course, redress for wrongs suffered by one under a legal disability may be pursued in a common law negligence action wholly apart from statutory considerations. The instant complaint is sufficient to support such a cause of action and, since there are obvious factual issues to be resolved in determining defendants' liability, if any, the motions for summary judgment were properly denied.

Order affirmed, without costs.

SWEENEY, KANE and CASEY, JJ., concur.

MAHONEY, P. J., and WEISS, J., concur in the following memorandum by MAHONEY, P. J.

MAHONEY, Presiding Justice (concurring).

While we concur in the majority's holding that the order denying both plaintiff's and [440 N.Y.S.2d 740] defendants' motions for summary judgment must be affirmed, we cannot accept the view that subdivision (a) of section 1210 of the Vehicle and Traffic Law does not create a class of persons entitled to be protected by the statute, and, further, that plaintiff's decedent is not among its membership.

In recommending the enactment of section 1210, the Joint Legislative Committee on Motor Vehicle Problems stated that the proposed law was "designed to obviate the risk of a vehicle moving from the place where it was left parked and possibly injuring the person and property of others as well as itself being damaged. It serves to lessen the likelihood of theft" (N.Y.Legis.Doc., 1954, No. 36, pp. 106-107). Since at common law the owner was not liable, as a matter of law, for the negligence of a thief, on the basis that the use of the car by the thief intervened between the occurrence of the negligence of the owner and the unskillful operation of the car by the thief (Walter v. Bond, 267 App.Div. 779, 45 N.Y.S.2d 378, affd. 292 N.Y. 574, 54 N.E.2d 691; Mann v. Parshall, 229 App.Div. 366, 241 N.Y.S. 673), the statute changed the common law and made it clear that the intervention of an unauthorized person no longer operates to break the chain of causation. Where, as here, the legislative intent to protect the public generally from the consequences that foreseeably flow from unauthorized use of motor vehicles is clear, and, again as here, the violation of subdivision (a) of section 1210 is undisputed, it is patently unfair to deny to plaintiff the evidentiary weight of such violation and leave him to the more vigorous burden of establishing common law negligence.

280 N.Y. 124
19 N.E.2d 987

TEDLA et al.
v.
ELLMAN et al.
BACHEK
v.
SAME.

Court of Appeals of New York.

Feb. 28, 1939.

Action by Anna Tedla and husband for damages resulting from injuries sustained by Anna Tedla, against Joseph Ellman and another, consolidated with action by Mary Bachek, as administratrix of the estate of John Bachek, deceased, to recover damages for death of deceased, against Joseph Ellman and another. From judgments of the Appellate Division of the Supreme Court, 253 App.Div. 764, 300 N.Y.S. 1051, affirming judgments in favor of plaintiffs entered upon a verdict in each case, the defendants appeal by permission.

Judgment in each action affirmed.

O'BRIEN and FINCH, JJ., dissenting.

[19 N.E.2d 988] Appeal from Supreme Court, Appellate Division; Second department.

Hobart R. Marvin and James A. Hughes, both of New York City, for appellants.

Jacob Zelenko and Sidney R. Siben, both of New York City, for respondents.

LEHMAN, Judge.

While walking along a highway, Anna Tedla and her brother, John Backek, were struck by a passing automobile, operated by the defendant Hellman. She was injured and Bachek was killed. Bachek was a deaf-mute. His occupation was collecting and selling junk. His sister, Mrs. Tedla, was engaged in the same occupation. They often picked up junk at the incinerator of the village of Islip. At the time of the accident they were walking along ‘Sunrise Highway’ and wheeling baby carriages containing junk and wood which they had picked up at the incinerator. It was about six o'clock, or a little earlier, on a Sunday evening in December. Darkness had already set in. Bachek was carrying a lighted lantern, or, at least, there is testimony to that effect. The jury found that the accident was due solely to the negligence of the operator of the automobile. The defendants do not, upon this appeal, challenge the finding of negligence on the part of the operator. They maintain, however, that Mrs. Tedla and her brother were guilty of contributory negligence as matter of law.

Sunrise Highway, at the place of the accident, consists of two roadways, separated by a grass plot. There are no footpaths along the highway and the center grass plot was soft. It is not unlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances, but a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably prudent person would use. The Vehicle and Traffic Law (Consol. Laws, c. 71) provides that ‘Pedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be subject to, and comply with, the rules governing vehicles, with respect to meeting and turning out, except that such pedestrians shall keep to the left of the center line thereof, and turn to their left instead of right side thereof, so as to permit all vehicles passing them in either direction to pass on their right. Such pedestrians shall not be subject to the rules governing vehicles as to giving signals.’ Section 85, subd. 6. Mrs. Tedla and her brother did not observe the statutory rule, and at the time of the accident were proceeding in easterly direction on the east bound or right-hand roadway. The defendants moved to dismiss the complaint on the ground, among others, that violation of the statutory rule constitutes contributory negligence as matter of law. They did not, in the courts below, urge that any negligence in other respect of Mrs. Tedla or her brother bars a recovery. The trial judge left to the jury the question whether failure to observe the statutory rule was a [19 N.E.2d 989] proximate cause of the accident; he left to the jury no question of other fault or negligence on the part of Mrs. Tedla or her brother, and the defendants did not request that any other question be submitted. Upon this appeal, the only question presented is whether, as matter of law, disregard of the statutory rule that pedestrians shall keep to the left of the center line of a highway constitutes contributory negligence which bars any recovery by the plaintiff.

Vehicular traffic can proceed safely and without recurrent traffic tangles only if vehicles observe accepted rules of the road. Such rules, and especially the rule that all vehicles proceeding in one direction must keep to a disignated part or side of the road-in this country the right-hand side-have been dictated by necessity and formulated by custom. The general use of automobiles has increased in unprecedented degree the number and speed of vehicles. Control of traffic becomes an increasingly difficult problem. Rules of the road, regulating the rights and duties of those who use highways, have, in consequence, become increasingly important. The Legislature no longer leaves to custom the formulation of such rules. Statutes now codity, define, supplement, and, where changing conditions suggest change in rule, even change rules of the road which formerly rested on custom. Custom and common sense have always dictated that vehicles should have the right of way over pedestrians and that pedestrians should walk along the edge of a highway so that they might step aside for passing vehicles with least danger to themselves and least obstruction to vehicluar traffic. Otherwise, perhaps, no customary rule of the road was observed by pedestrians with the same uniformity as by vehicles; though, in general, they probably followed, until recently, the same rules as vehicles.

Pedestrians are seldom a source of danger or serious obstruction to vehicles and when horse-drawn vehicles were common they seldom injured pedestrians using a highway with reasonable care, unless the horse became unmanageable or the driver was grossly negligent or guilty of willful wrong. Swift-moving motor vehicles, it was soon recognized, do endanger the safety of pedestrians crossing highways, and it is imperative that there the relative rights and duties of pedestrians and of vehicles should be understood and observed. The Legislature in the first five subdivisions of section 85 of the Vehicle and Traffic Law has provided regulations to govern the conduct of pedestrians and of drivers of vehicles when a pedestrian is crossing a road. Until by chapter 114 of the Laws of 1933, it adopted subdivision 6 of section 85, quoted above, there was no special statutory rule for pedestrians walking along a highway. Then for the first time it reversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided that pedestrians shall keep to the left of the center line of a highway.

The plaintiffs showed by the testimony of a State policeman that ‘there were very few cars going east’ at the time of the accident, but that going west there was ‘very heavy Sunday night traffic.’ Until the recent adoption of the new statutory rule for pedestrians, ordinary prudence would have dictated that pedestrians should not expose themselves to the danger of walking along the roadway upon which the ‘very heavy Sunday night traffic’ was proceeding when they could walk in comparative safety along a roadway used by very few cars. In is said that now, by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of law when they use the safer roadway, unless that roadway is left of the center of the road. Disregard of the statutory rule of the road and observance of a rule based on immemorial custom, it is said, is negligence which as matter of law is a proximate cause of the accident, though observance of the statutory rule might, under the circumstances of the particular case, expose a pedestrian to serious danger from which he would be free if he followed the rule that had been established by custom. If that be true, then the Legislature has decreed that pedestrians must observe the general rule of conduct which it has prescribed for their safety even under circumstances where observance would subject them to unusual risk; that pedestrians are to be charged with negligence as matter of law for acting as prudence dictates. It is unreasonable to ascribe to the Legislature an intention that the statute should have so extraordinary a result, and the courts may not give to a statute an effect not intended by the Legislature.

[19 N.E.2d 990] The Legislature, when it enacted the statute, presumably knew that this court and the courts of other jurisdictions had established the general principle that omission by a plaintiff of a safeguard, prescribed by statute, against a recognized danger, constitutes negligence as matter of law which bars recovery for damages caused by incidence of the danger for which the safeguard was prescribed. The principle has been formulated in the Restatement of the Law of Torts: ‘A plaintiff who has violated a legislative enactment designed to prevent a certain type of dangerous situation is barred from recovery for a harm caused by a violation of the statute if, but only if, the harm was sustained by reason of a situation of that type.’ § 469. So where a plaintiff failed to place lights upon a vehicle, as required by statute, this court has said: ‘we think the unexcused ommission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway. Highway Law [Consol.Laws, c. 25] § 329-a. By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform. That, we think, is now the established rule in this State.’ Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814, 815, per Cardozo, J. The appellants lean heavily upon that and kindred cases and the principle established by them.

The analogy is, however, incomplete. The ‘established rule’ should not be weakened either by subtle distinctions or by extension beyond its letter or spirit into a field where ‘by the very terms of the hypothesis' it can have no proper application. At times the indefinite and flexible standard of care of the traditional reasonably prudent man may be, in the opinion of the Legislature, an insufficient measure of the care which should be exercised to guard against a recoginized danger; at times, the duty, imposed by custom, that no man shall use what is his to the harm of others provides insufficient safeguard for the preservation of the life or limb or property of others. Then the Legislature may by statute prescribe additional safeguards and may define duty and standard of care in rigid terms; and when the Legislature has spoken, the standard of the care required is no longer what the reasonably prudent man would do under the circumstances but what the Legislature has commanded. That is the rule established by the courts and ‘by the very terms of the hypothesis' the rule applies where the Legislature has prescribed safeguards ‘for the benefit of another that he may be preserved in life or limb.’ In that field debate as to whether the safeguards so prescribed are reasonably necessary is ended by the legislative fiat. Obedience to that fiat cannot add to the danger, even assuming that the prescribed safeguards are not reasonably necessary and where the legislative anticipation of dangers is realized and harm results through heedless or willful omission of the prescribed safeguard, injury flows from wrong and the wrongdoer is properly held responsible for the consequent damages.

The statute upon which the defendants rely is of different character. It does not prescribe additional safeguards which pedestrians must provide for the preservation of the life or limb or property of others, or even of themselves, nor does it impose upon pedestrians a higher standard of care. What the statute does provide is rules of the road to be observed by pedestrians and by vehicles, so that all those who use the road may know how they and others should proceed, at least under usual circumstances. A general rule of conduct-and, specifically, a rule of the road-may acccomplish its intended purpose under usual conditions, but, when the unusual occurs, strict observance may defeat the purpose of the rule and produce catastrophic results.

Negligence is failure to exercise the care required by law. Where a statute defines the standard of care and the safeguards required to meet a recognized danger, then, as we have said, no other measure may be applied in determining whether a person has carried out the duty of care imposed by law. Failure to observe the standard imposed by statute is negligence, as matter of law. On the other hand, where a statutory general rule of conduct fixes no definite standard of care which would under all circumstances tend to protect life, limb or property but merely codifies or supplements a common-law rule, which has always been subject to [19 N.E.2d 991] limitations and exceptions; or where the statutory rule of conduct regulates conflicting rights and obligations in manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents. We may assume reasonably that the Legislature directed pedestrians to keep to the left of the center of the road because that would cause them to face traffic approaching in that lane and would enable them to care for their own safety better than if the traffic approached them from the rear. We cannot assume reasonably that the Legislature intended that a statute enacted for the preservation of the life and limb of pedestrians must be observed when observance would subject them to more imminent danger.

The distinction in the effect of statutes defining a standard of care or requiring specified safeguards against recognized dangers and the effect of statutes which merely codify, supplement or even change common-law rules or which prescribe a general rule of conduct calculated to prevent accidents but which under unusual conditions may cause accidents, has been pointed out often. Seldom have the courts held that failure to observe a rule of the road, even though embodied in a statute, constitutes negligence as matter of law where observance would subject a person to danger which might be avoided by disregard of the general rule. ‘In the United States and in England certain rules regarding the rights of vehicles and persons meeting or passing in the public highway have been established by long continued custom or usage, or, in many jurisdictions, by statutory regulation. These rules and regulations are usually spoken of as ‘the law of the road’ or ‘the rules of the road.’ These rules are, however, not inflexible, and a strict observance should be avoided when there is a plain risk in adhering to them, and one who too rigidly adheres to such rules when the injury might have been averted by variance therefrom may be charged with fault; * * * the exceptions to the rule of the road depend upon the special circumstances of the case and in respect to which no general rule can be applied.' 13 Ruling Case Law, tit. ‘Highways,’ § 222. Cf. Clarke v. Woop, 159 App.Div. 437, 144 N.Y.S. 595; Thomas on Negligence (2d Ed.), 2346; Shearman & Redfield on Negligence, 649; Herdman v. Zwart, 167 Iowa 500, 503, 149 N.W. 631;McElhinney v. Knittle, 199 Iowa 278, 201 N.W. 586;Piper v. Adams Express Co., 270 Pa. 54, 113 A. 562;Dohm v. R. N. Cardozo & Bro., 165 Minn. 193, 206 N.W. 377;Snow v. Riggs, 172 Ark. 835, 840, 290 S.W. 591. See also, 24 A.L.R. 1304, note; 63 A.L.R. 277, note.

The generally accepted rule and the reasons for it are set forth in the comment to section 286 of the Restatement of the Law of Torts: 'Many statutes and ordinances are so worded as apparently to express a universally obligatory rule of conduct. Such enactments, however, may in view of their purpose and spirit be properly construed as intended to apply only to ordinary situations and to be subject to the qualification that the conduct prohibited thereby is not wrongful if, because of an emergency or the like, the circumstances justify an apparent disobedience to the letter of the enactment. * * * The provisions of statutes intended to codify and supplement the rules of conduct which are established by a course of judicial decision or by custom, are often construed as subject to the same limitations and exceptions as the rules which they supersede. Thus, a statute or ordinance requiring all persons to drive on the right side of the road may be construed as subject to an exception permitting travellers to drive upon the other side, if so doing is likely to prevent rather than cause the accidents which it is the purpose of the statute or ordinance to prevent.'

Even under that construction of the statute, a pedestrian is, of course, at fault if he fails without good reason to observe the statutory rule of conduct. The general duty is established by the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible for the damages resulting from his wrong. Cf. Dohm v. R. N. Cardozo & Bro., supra; Herdman v. Zwart, supra; Clarke v. Woop, supra.

[19 N.E.2d 992] I have so far discussed the problem of the plaintiffs' right to compensation for the damages caused by defendants' negligence as if it depended solely upon the question of whether the pedestrians were at fault, and I have ignored the question whether their alleged fault was a proximate cause of the accident. In truth, the two questions cannot be separated completely. If the pedestrians had observed the statutory rule of the road they would have proceeded easterly along the roadway on the left of the center grass plot, and then, it must be conceded, they would not have been struck by the automobile in which the defendants were riding, proceeding in the same direction along the roadway on the right. Their presence on the roadway where they were struck was an essential condition of their injury. Was it also as matter of law a proximate cause of the accident? ‘The position of a vehicle which has been struck by another may or many not have been one of the causes of the striking. Of course, it could not have been struck if it had not been in the place where the blow came. But this is a statement of an essential condition, and not of a cause of the impact. The distinction is between that which directly or proximately produces or helps to produce, a result as an efficient cause and that which is a necessary condition or attendant cause of it. * * * That is, a contributing cause of an accident, is usually a question for a jury, to be determined by the facts of the particular case.’ Newcomb v. Boston Protective Department, 146 Mass. 596, 604, 16 N.E. 555, 559,4 Am.St.Rep. 354. Here the jury might find that the pedestrians avoided a greater, indeed an almost suicidal, risk by proceeding along the east bound roadway; that the operator of the automobile was entirely heedless of the possibility of the presence of pedestrians on the highway; and that a pedestrian could not have avoided the accident even if he had faced oncoming traffic. Under those circumstances the question of proximate cause, as well as the question of negligence, was one of fact.

In each action, the judgment should be affirmed, with costs.

CRANE, C. J., and HUBBS, LOUGHRAN, and RIPPEY, JJ., concur.
O'BRIEN and FINCH, JJ., dissent on the authority of Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814.

Judgments affirmed.