Chapter XXXV: Section IV: Violation of Statutory Duty

KNUPFLE _v._ KNICKERBOCKER ICE CO.
COURT OF APPEALS, NEW YORK, MARCH 15, 1881.
_Reported in 84 New York Reports, 488._

Per Curiam.[303] One of the principal questions litigated upon the trial of this action related to the alleged negligence of the driver of the defendant’s team in leaving the horses untied in the street, which, it was claimed, was the cause of the death of the intestate. Among other evidence to establish such negligence, the plaintiff offered and introduced in evidence, against the objection of the defendant, an ordinance of the city of Brooklyn, prohibiting the leaving of any horse or horses attached to a vehicle standing in any street without a person in charge, or without being secured to a tying post. We think there is no question as to the admissibility of such testimony under the decisions of this court, and the exception taken to the ruling in this respect cannot be upheld.

A more serious question arises as to the effect to be given to the evidence referred to. At the close of the charge the plaintiff’s counsel requested the judge to charge the jury that a violation of an ordinance of the city is necessarily negligence; and the judge replied: “it is; I have so told the jury; it is negligence;” and the defendant’s counsel excepted. We think there was error in the charge thus made, and that the judge went too far in holding that a violation of the ordinance was negligence of itself.

The question presented has been the subject of consideration in this court, as will be seen by reference to the reported cases. In Brown _v._ B. & State Line R. R. Co., 22 N. Y. 191, the court charged the jury that if the injury occurred while defendant’s train was running in violation of a city ordinance and at a rate of speed forbidden by it, and was occasioned by or would not have occurred except for such violation, the defendant was liable, and this direction was held to be error. This doctrine is, however, repudiated in Jetter _v._ N. Y. & H. R. R. Co., 2 Abb. Ct. App. Dec. 458, as well as in subsequent cases. In the last case cited it was held that a party in doing a lawful act, where there is no present danger, or appearance of danger, has a right to assume that others will conform their conduct to the express requirements of the law and not bring injury upon him by its violation. It is also strongly intimated that a violator of such an ordinance is a wrong-doer and necessarily negligent, and a person injured thereby is entitled to a civil remedy. The distinct point now raised was not, however, fairly presented by the charge to which exception was taken, which was not otherwise erroneous. In Beisegel _v._ N. Y. C. R. R. Co., 14 Abb. Pr. [N. S.] 29, it was held that it was some evidence of negligence to show that an ordinance was violated, and the charge of the judge upon the trial to that effect was upheld. In McGrath _v._ N. Y. C. & H. R. R. R. Co., 63 N. Y. 522, it was laid down that the violation or disregard of an ordinance, while not conclusive evidence of negligence, is some evidence for the consideration of the jury. In Massoth _v._ D. & H. Canal Co., 64 N. Y. 524, the cases are reviewed, and it was said to be an open question in this court whether the violation of a municipal ordinance was negligence _per se_; and it was held that the city ordinance being submitted to the jury with the other evidence as bearing upon the question, but not as conclusive, there was no error in the parts of the charge excepted to. The result of the decisions, therefore, is, that the violation of the ordinance is some evidence of negligence, but not necessarily negligence. The judge not only assented unqualifiedly to the request made, but he also said that it was negligence; and thus went further than to hold, within the cases cited, that it was evidence of negligence.

The counsel for the plaintiff urges that even if erroneous, the charge worked defendant no injury. This position is based upon the theory that as the question was submitted to the jury as one of fact, whether the team was left loose and unattended, and as the judge had charged that the ordinance adds very little to what would have been the rule without it, and that it was negligence to leave a horse untied or not in charge of some one, in a public street, whether there is an ordinance or not, they must have found that they were so left, and, therefore, the plaintiff was entitled to a verdict. The difficulty about this position is, that the question, whether leaving the horses untied was negligence, was one of fact depending upon the circumstances attending the case, and while the jury may have found in favor of the defendant as to this, their verdict may have resulted from the charge made as to the effect of the ordinance. It cannot, therefore, be said that by the portion of the charge which has been considered the defendant was not prejudiced.

For the error in the charge, without considering the other questions raised, the judgment should be reversed and a new trial granted, costs to abide event.

All concur, except MILLER and DANFORTH, JJ., dissenting, and RAPALLO, J., absent.

_Judgment reversed._[304]

HOLMAN _v._ CHICAGO, ROCK ISLAND & PACIFIC R. CO.
SUPREME COURT, MISSOURI, MAY TERM, 1876.
_Reported in 62 Missouri Reports, 562._

HOUGH, J.[305] This was an action to recover damages for the killing of a cow, belonging to the plaintiff, by a train on defendant’s railroad in a street of the town of Cameron.

The evidence given at the trial is stated in the bill of exceptions in the following language: “The plaintiff, to maintain the issues on his part, introduced evidence tending to show, that the bell was not rung, nor the whistle sounded on the train mentioned in his statement, as it approached and ran over the cow in controversy; that the cow was killed on defendant’s railroad on a public travelled street of the town of Cameron, in Shoal township, by a train on said railroad, and that said cow was worth thirty-five dollars. The defendant introduced one Kiley, who testified that he was the conductor on said train, and that the bell was rung and the whistle sounded. This was all the evidence offered.”

It will not be necessary to notice the instructions given and refused. There was a verdict and judgment for the plaintiff, and the defendant has brought the case here by appeal.

The statute in relation to railroad corporations, which requires the bell on the locomotive to be rung, or the steam whistle to be sounded, before reaching and while crossing any travelled public road or street, provides a penalty for the neglect of such requirement, and further declares that the corporation shall be liable for all damages which shall be sustained by any person by reason of such neglect. Conceding that the servants of the defendant neglected to ring the bell or sound the whistle, the question is whether there is any evidence tending to show that the cow was killed by reason of such neglect.

In the case of Stoneman _v._ Atl. & Pac. R. R. Co., 58 Mo. 503, it was said, on the point in judgment, that “the court had no right to declare as a matter of law, that the jury had nothing to find but the killing of the animal at the crossing of a public highway, and the failure of the company to have the bell rung or the whistle sounded. There may have been no connection, whatever, between the negligent omission and the damage; and the very terms of the statute, under which the suit is brought, clearly indicate that the damage must be the result of the negligence.”

The foregoing extract clearly asserts, that there is no necessary connection between the failure to ring the bell or sound the whistle, and the killing; that both may concur in point of time, and the latter not be the result of the former. How, then, must the connection be shown? By evidence, undoubtedly. Who must produce such evidence? The party who asserts that such connection exists. The damage must be shown to be the result of the negligence; that is, the negligence must first be shown, and this fact must be supplemented by testimony tending to show that the negligence occasioned the damage. This testimony should consist of all the facts and circumstances attending the killing, so that the jury could fairly and rationally conclude whether it resulted from the failure to ring the bell or sound the whistle, or from other causes. In the case at bar no such testimony was offered; but two facts were shown to fix the defendants liability, the failure to give the required signal at the crossing, and the killing. No fact was shown tending to connect the two. If the plaintiff can recover on the evidence embodied in the bill of exceptions, it must be, because it is only necessary for the jury to find the killing of the animal on the highway, and the failure to ring the bell or sound the whistle, for there is no testimony from which they can find more. But this, we have seen, is not sufficient. Upon the case made, it was the duty of the court to declare as a matter of law that the plaintiff was not entitled to recover.

This conclusion has been reached after a careful consideration of the case of Owens _v._ Hann. & St. Jo. R. R., 58 Mo. 386; and Howenstein _v._ Pac. R. R., 55 Mo. 33.

The judgment must be reversed and the cause remanded. All the judges concur, except Judge Vories, who is absent.[306]

BRATTLEBORO _v._ WAIT
SUPREME COURT, VERMONT, FEBRUARY TERM, 1872.
_Reported in 44 Vermont Reports, 459._

Action on the case, to recover damages sustained by reason of the defendant’s neglect and refusal to comply with the requirements of § 39, ch. 83 of the General Statutes, and § 1 of No. 6 of the acts of the legislature of 1865. Demurrer to the declaration by the defendant.

The court, September term, 1870, BARRETT, J., presiding, sustained the demurrer, and rendered judgment for the defendant. Exceptions by the plaintiff.

The opinion of the court was delivered by.—

ROSS, J. The question in this case is whether the defendant as cashier of the Windham County Bank for the years commencing April 1, 1864, and April 1, 1865, and of the First National Bank of Brattleboro for the years commencing April 1, 1866, and April 1, 1867, is liable for any loss that may have resulted to the town, by his neglect to return to the town clerk of the plaintiff, for the first two years named, the names of the stockholders in the Windham County Bank, agreeably to the requirements of § 39, ch. 83 of the General Statutes, and for the last two years the names of the stockholders of the First National Bank of Brattleboro, agreeably to the requirements of § 1, of No. 6 of the acts of 1865; or whether the penalties imposed by § 47 of ch. 83, and by § 5 of the act of 1865, are the only remedies given for the neglect of the defendant to perform the duties imposed by the two sections first above named.

These duties are created solely by the statutes named, and by them are superimposed upon the defendant in addition to those duties which were incumbent on him by reason of his acceptance of the office of cashier. The principle, that the law will furnish a remedy to a party injured by the neglect or non-performance of a duty imposed on an individual by statute, where the statute itself furnishes no remedy, is too familiar and well established to need the support of authorities. If the statute which imposes a new duty also provides a particular remedy, that remedy is usually the only remedy the injured party has. In Regina _v._ Wigg, 2 Salk. 460, the court says: “Where a new penalty is applied for a matter which at common law was an indictable offence, either remedy may be pursued; but where the statute makes the offence, that remedy must be taken which the statute gives.” Lord MANSFIELD, in Rex _v._ Robinson, 2 Bur. 799, stating the doctrine more fully, says: “The true rule of distinction seems to be, that where the offence intended to be guarded against was punishable before the making of such statute, prescribing a particular method of punishing it, there such particular remedy is cumulative, and does not take away the former remedy; but where the statute only enacts ‘that the doing any act not punishable before, shall for the future be punishable in such and such a particular manner there,’ it is necessary that such particular method, by such act prescribed, must be specifically pursued, and not the common law method of an indictment.” The doctrine stated in these early leading cases is as applicable to civil as to criminal prosecutions. The question then is, was the penalty or forfeiture of $100 provided for by § 47, ch. 83 of the General Statutes, and of $500 provided for in § 5 of the act of 1865, intended for the remedies to the plaintiff for the non-performance by the defendant of the duties imposed by § 39, and by § 1. We think they were. The penalties under these statutes are given to the town, as the party injured or aggrieved by the failure of the defendant to perform the duties imposed, as has been held in Newman, Treasurer of Brattleboro, _v._ this defendant, 43 Vt. 587, in which the plaintiff through its treasurer sought to recover the penalty imposed by § 5 of the act of 1865, for the defendant’s failure to comply with § 1 of that act during the years 1866 and 1867. It is unnecessary to repeat what has been said in that case. It would be inconsistent with the principle we have already stated, to hold that the plaintiff can recover the penalty as the party aggrieved, and also all damages it has sustained by the defendant’s failure to perform a duty wholly imposed upon him by the statute. Such holding would give the plaintiff a double remedy for the same failure by the defendant to perform a duty imposed by statute, and due to the plaintiff only by the force of the statute; the penalty prescribed, and an amercement in damages for all the plaintiff can show he has suffered from such failure. The penalty cannot be held to be a cumulative remedy; for before the passage of the act no duty was due from the defendant as cashier to the plaintiff, and, therefore, there could be no remedy, and nothing for the penalty to be cumulative to. Such holding would interpret one and the same act as giving a double remedy, which is contrary to all rules of interpretation, and only allowable when it is given in express terms by the statute.

_The judgment of the county court is affirmed._[307]

OSBORNE _v._ McMASTERS
SUPREME COURT, MINNESOTA, JANUARY 30, 1889.
_Reported in 40 Minnesota Reports, 103._

Appeal by defendant from a judgment of the District Court for Ramsey County, where the action was tried before Kelly, J., and a jury, and a verdict rendered for plaintiff.

MITCHELL, J. Upon the record in this case it must be taken as the facts that defendant’s clerk in his drug-store, in the course of his employment as such, sold to plaintiff’s intestate a deadly poison without labelling it “Poison,” as required by statute; that she, in ignorance of its deadly qualities, partook of the poison, which caused her death. Except for the ability of counsel and the earnestness with which they have argued the case, we would not have supposed that there could be any serious doubt of defendant’s liability on this state of facts. It is immaterial for present purposes whether section 329 of the Penal Code or section 14, c. 147, Laws 1885, or both, are still in force, and constitute the law governing this case.[308] The requirements of both statutes are substantially the same, and the sole object of both is to protect the public against the dangerous qualities of poison. It is now well settled, certainly in this state, that where a statute or municipal ordinance imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose protection or benefit it was imposed for any injuries of the character which the statute or ordinance was designed to prevent, and which were proximately produced by such neglect. In support of this we need only cite our own decision in Bott _v._ Pratt, 33 Minn. 323 (23 N. W. Rep. 237).

Defendant contends that this is only true where a right of action for the alleged negligent act existed at common law; that no liability existed at common law for selling poison without labelling it, and therefore none exists under this statute, no right of civil action being given by it. Without stopping to consider the correctness of the assumption that selling poison without labelling it might not be actionable negligence at common law, it is sufficient to say that, in our opinion, defendant’s contention proceeds upon an entire misapprehension of the nature and gist of a cause of action of this kind. The common law gives a right of action to every one sustaining injuries caused proximately by the negligence of another. The present is a common-law action, the gist of which is defendant’s negligence, resulting in the death of plaintiff’s intestate. Negligence is the breach of legal duty. It is immaterial whether the duty is one imposed by the rule of common law requiring the exercise of ordinary care not to injure another, or is imposed by a statute designed for the protection of others. In either case the failure to perform the duty constitutes negligence, and renders the party liable for injuries resulting from it. The only difference is that in the one case the measure of legal duty is to be determined upon common-law principles, while in the other the statute fixes it, so that the violation of the statute constitutes conclusive evidence of negligence, or, in other words, negligence _per se_. The action in the latter case is not a statutory one, nor does the statute give the right of action in any other sense except that it makes an act negligent which otherwise might not be such, or at least only evidence of negligence. All that the statute does is to establish a fixed standard by which the fact of negligence may be determined. The gist of the action is still negligence, or the non-performance of a legal duty to the person injured.

What has been already said suggests the answer to the further contention that if any civil liability exists it is only against the clerk who sold the poison, and who alone is criminally liable. Whether the act constituting the actionable negligence was such on common-law principles, or is made such by statute, the doctrine of agency applies, to wit, that the master is civilly liable for the negligence of his servant committed in the course of his employment, and resulting in injuries to third persons.

_Judgment affirmed._[309]

WILLY _v._ MULLEDY
COURT OF APPEALS, NEW YORK, SEPTEMBER 30, 1879.
_Reported in 78 New York Reports, 310._

EARL, J.[310] This is an action to recover damages for the death of plaintiff’s wife, alleged to have been caused by the fault of the defendant. Prior to the 1st day of November, 1877, the plaintiff hired of the defendant certain apartments in the rear of the third story of a tenement house in the city of Brooklyn, and with his wife and infant child moved into them on that day. On the fifth day in the same month, in the daytime, a fire took place, originating in the lower story of the house, and plaintiff’s wife and child were smothered to death.

It is claimed that the defendant was in fault because he had not constructed for the house a fire-escape, and because he had not placed in the house a ladder for access to the scuttle.