I concur in the judgment, but for reasons different from those stated by Mr. Justice Wilbur. In my *Page 149 opinion the evidence showed conclusively that the automobile was going at a rate exceeding the lawful limit of thirty miles an hour at the time it overturned. The marks upon the highway were of a character that could not have been made unless the speed was in excess of that limit. There is no direct evidence, however, tending to prove that Marazzo was knowingly driving in excess of the speed limit. The accident occurred about 11 o'clock at night. He may not have been able to see the speed gauge of the automobile, assuming that there was one, owing to the darkness. The difference between a speed in excess of thirty miles an hour and a speed under that rate, especially at night, is often imperceptible to those in the vehicle. The fact that the accident which caused the injury was the result of willful negligence of the injured employee is not a defense to an application for an award under the Workmen's Compensation Act of 1917, when the injury causes his death. The act does not provide that the employer shall not be liable where the act of the employee which causes death is a violation of law. The theory that such fact is a defense can only be sustained upon the general principle that no one can be allowed to receive the benefit of the workmen's compensation law for an injury resulting from a violation of some other law by the injured party. I do not say that such principle should be laid down as a matter of public policy in such cases as the one at bar. The act does not so declare, and it would seem to be a matter of policy properly within the control of the legislature. But if such principle should prevail, I think that, as applied to this law, it should be limited to cases where the act of the employee was either morally vicious in itself, as well as a violation of express law, or a conscious violation of a law that is merely prohibitory in character. Nothing of the kind appears, and, therefore, the evidence sustains the award.
Olney, J., concurred. *Page 150