139 Mass. 74 | Mass. | 1885
The only question which we need consider is, whether the court properly ruled that the plaintiff was “ travelling,” within the meaning of Pub. Sts. c. 98, § 3, which provides that “ whoever travels on the Lord’s day, except from necessity or charity, shall be punished by fine not exceeding ten dollars for each offence.”
It was held in Hamilton v. Boston, 14 Allen, 475, upon full consideration, that walking half a mile in the streets of Boston for air and exercise was not travelling, within the meaning of the statute. We cannot distinguish the case at bar from that case. The difference in distance passed over does not distinguish the cases. If a walk of half a mile does not make a person a traveller, it cannot be held, as matter of law, that he becomes one by extending his walk to a mile and an eighth.
The fact that the plaintiff rode part of the way on his return is immaterial, even if riding is more travelling or more unlawful than walking. He started from his home to walk; he was walking when he was injured, and the fact that he rode part of the
The only other ground for distinguishing the cases is, that in Hamilton v. Boston the purpose of the plaintiff in walking was merely for recreation; in this case, there was also the purpose of making a social call. Neither act is prohibited by law, if that is material. It is not unlawful under the statute, or as against public policy, to pay friendly visits, or to indulge in the recreation of walking, on the Lord’s day. It is unlawful to travel for the purpose of doing either; but it is not the purpose, but the fact of travelling for the purpose, that renders the act unlawful. Upon no principle can the same walk be held to be travelling if for the purpose of making a friendly call, and not travelling if for the purpose of air and exercise. A construction of the statute cannot be tenable which will hold a person to be an innocent passer-by if walking for recreation, but an unlawful traveller if walking to call upon his neighbor; and which will impose the character of a traveller violating the law upon any person who, on a Sunday- evening, seeks social intercourse outside of his own household.
In O’ Connell v. Lewiston, 65 Maine, 34, the case of Hamilton v. Boston was followed, and a person was held not to be a traveller who took a walk of a mile and returned, calling on the way at a house for a companion; and this was affirmed in Davidson v. Portland, ubi supra.
In the opinion of a majority of the court, the entry must be,
Exceptions sustained.
Section 1 of the St. of 1884, c. 87, which took effect on February 27, 1884, is as follows: “The provisions of chapter ninety-eight of the Public Statutes relating to the observance of the Lord’s day shall not constitute a defence to an action for a tort or injury suffered by a person on that day.”