By – Kamakshi Agrawal

New York courts of appeals

Name of the caseMartin v. Herzog
Citation228 N.Y. 164(N.Y. 1920) 126 N.E. 814
Date of case24 Feb 1920
Bench/judgesBenjamin N. Cardozo John W. Hogan
Statues/ constitutionNegligence per se Contributory negligence
Section’s involvedHighway law sec. 286, subdivision. 3; sec 332; console Laws, ch. 25Highway law, sec. 329a, as amended by L. 1915, ch. 367


Negligence per se in law is a doctrine whereby an act is considered negligent because it violates a statute, it is effectively a form of strict liability whereas contributory negligence is a defence to tort if it is available, the defence completely bars plaintiffs from any recovery if they contribute to their own injuries through their own actions. The term Negligence is derived from the Latin word negligent, which means ‘failing to pick up’.

Negligence in English law emerged as an independent cause of action only in the 18th century. Similarly in Indian law, the IPC, 1860 contained no provision for causing the death of a person by negligence which was subsequently amended in the year 1870 by inserting section 304A.

In this case, negligence was charged Against the defendant, who was driving the car as he did not keep to the right of the centre of the highway (Highway law sec. 286, subdivision . 3; sec 332; console Laws, ch. 25)

Negligence was also charged against the plaintiff’s interstate, the one who was driving the buggy as he was driving without headlights on his vehicle (Highway law, sec. 329a, as amended by L. 1915, ch. 367)


On the night of August 21, 1915, plaintiff Mrs Martin along with her husband were driving towards Tarry town in a buggy, they suddenly were struck by the defendant’s automobile coming from the opposite direction. They were thrown to the ground and in this accident, Martin lost her husband. Negligence is charged against the defendant, the driver of the car, in that he did not keep to the right of the centre of the highway.

Plaintiff sued the car driver to recover damages that resulted in the death of her husband. She alleged that the defendant was driving on the wrong side of the road whereas the defendant claimed that her husband was contributorily negligent for driving without headlights under the law. At trial, the defendant requested to consider the absence of headlights in determining whether the plaintiff’s husband was guilty of contributory negligence or not. But the trial court refused his request. The jury found the defendant liable and the plaintiff free from contributory negligence. The appellate court reversed the judgment that of the trial’s court.


  1. Does a jury have the power to relax the duty under statue?
  2. Does the breach of statutory duty intend for the protection of constitutional negligence per se?
  3. Is there a connection showing that such conduct was the cause of injuries incurred?


  1. Plaintiff’s failure to use headlights was negligence per se as a statue is required for the safety of oneself and of others.
  2. Defendant should have drove to the right side of the highway as per the highway rule mentioned above.
  3. A negligent defendant is not to pay damages for his fault, unless it is the cause of any disaster.
  4. Similarly, a negligent plaintiff is not to forfeit the rights to damages, unless the negligence is contributing cause of disaster.


The jury has no such dispensing power; by which they may relax the duty that one traveller on the highway owes under the statute to another. The omission of these lights was wrong and wholly unexcused. A statute is designed for the protection of human life and not to be brushed aside as a form of words, its commands are reduced to the level of caution and the duty to obey is attenuated into an option to confirm. 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. Here we have an instance of the admitted violation of a statute intended for the protection of travellers on the highway, of whom D at the time was one.

The jury was improperly instructed with their judgement of discretion to treat the omission of lights either as innocent or as culpable. 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. 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” To impose liability there still must be a showing of cause, proximate cause and damages. The failure of Plaintiff’s husband to use his headlights in accordance with the law is negligent conduct. The jurors have no discretion to treat such negligence differently or to ignore it. But at the same time, there must still be a showing of the other elements of proof related to negligence to hold Defendant liable. “Is there a causal connection between the negligence and the injury?” 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 centre of the road, but he did not run into the buggy purposely, nor was he driving while intoxicated. The collision was due to his failure to see at a time when sight should have

been aroused and guided by the statutory warnings.


The defendant was approaching with a very high-speed rate. No causal connection between the collision and the absence of light on the buggy. Had the defendant been upon his right side of the road, the accident

would not have happened, and the lack of vision would not be material. Even if the absence of light on the buggy did contribute to the collision, such contributory negligence was not the proximate but a remote contributory cause of the injury.


  • The doctrine of negligence per se: “violation of statute is negligence per se”. In an opinion written by Benjamin N. Cardozo, the New York Court of Appeals affirmed the Appellate Division’s ruling that the trial judge’s jury instruction was erroneous. The trial judge had instructed the jury to consider the plaintiff’s statutory violation when determining whether the plaintiff was contributorily negligent. The Court of Appeals held that the question of contributory negligence should not have been submitted to the jury. The plaintiff’s violation of the statute was not mere evidence of negligence to be considered by the fact-finder; it was negligence as a matter of law.
  • The doctrine of contributory negligence: “if plaintiff’s negligence was a cause of the injury, she is barred from claiming recovery”.  The statute requiring highway travellers to have headlights codified the common law duty of one highway traveller to another. In failing to have headlights on his buggy, the plaintiff’s intestate breached a duty of care to other highway travellers. the Court of Appeals found the plaintiff’s traveling without lights an hour after sundown to be prima facie sufficient evidence of negligence contributing to the accident.


 In this above case, we have an instance of the admitted violation of a statute intended for the protection of travellers on the highway, of whom the defendant at the time was one. Yet the jury was instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. Jurors have no dispensing power by which they may relax the duty that one traveller on the highway owes under the statute to another. It is an error to tell them that they have. The omission of these lights was wrong, and being wholly unexcused was also a negligent wrong. The jury is the trier of facts. Plaintiff wrongfully violated a statute intended for the protection of Defendant. Plaintiff is negligent per se. The only thing left to determine is causation and injury. If Plaintiff’s failure to light the buggy was the cause of the accident, then it is contributory negligence.

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