Bosworth v. Inhabitants of Swansey
51 Mass. 363
Mass.
1845
Check Treatment
Shaw, C. J.

This was an action to recover damages against a town for a defect in their highway, by means of which the plaintiff sustained a loss. It appeared that the accident occurred on the Lord’s day.

It has been repeatedly decided that, to maintain this action, it must appear that the accident was occasioned exclusively by the defect of the highway; to establish which, it must appear that the plaintiff himself is free from all just imputation of negligence or fault. Smith v. Smith, 2 Pick. 621. Howard v. North Bridgewater, 16 Pick. 189. And in these and other cases/ it has been held that the búrden of proof is on the plaintiff, to prove affirmatively that he was so free from all fault. Adams v. Carlisle, 21 Pick. 146. Lane v. Crombie, 12 Pick. 177. The court are of opinion that this case comes within this principle. The Rev. Sts. c. 50, <§> 2, provide that “ no person shall travel on the Lord’s day, except from necessity or charity,” and that “ every person so offending shall be punished by a fine, not exceeding ten dollars for every offence.” The act of the plaintiff, therefore, in doing which the accident occurred, was plainly unlawful, unless he could bring himself within the excepted cases ; and this would be a species of fault on his part, which would bring him within the principle of the cases cited. It would show that his own unlawful act concurred in causing the damage complained of. Then if he would bring himself within either of the exceptions, he must prove the fact which the statute makes an exception. In the case last above cited, Lane v. Crombie, the verdict was set aside, because the judge instructed the jury, that after the negligence of the defendants had been proved, if they relied on want of due care on the part of the plaintiff, the burden was upon them to prove it. This was held to be erroneous, and the burden was decided to be on the plaintiff to prove herself free from all fault. On this ground the verdict was set aside, although the evidence was such that probably the d’"''ction in regard to burden of proof had not much influence.

The court are therefore of opinion that the instruction of the *366judge was right, that the burden of proof was on the plaintiff to show that his travelling on the Lord’s day was from necessity or for purposes of charity.

What constitutes such necessity or purpose of charity, are ruestions not raised by the bill of exceptions.

Exceptions overruled.