JHDGE BENNETT
delivered the opinion of the court.
The appellee brought this penal action in pursuance of section 11, title I, of the Criminal Code, to recover the *116penalty denounced by section 10, article 17, chapter 29 of the General Statutes, for violating the Sabbath-day. A verdict and judgment having being rendered against the appellant, and it having failed to make a motion or file any grounds for a new trial, its appeal can only be considered with reference to the sufficiency of the pleadings to sustain the verdict and judgment. (See Harper v. Harper, 10 Bush, 451.)
The petition discloses that on the-day of-, it being the Sabbath-day, in the year 1887, the appellant employed thirty persons, whose names were unknown to the appellee, in handling and distributing cross-ties along its track in “ Green county.” A motion was made to compel the appellee to insert the day of the month in the petition, which was overruled. This action of the court was correct, for the reason that the time when the fact happened is not a constituent part of the cause of action, except, perhaps, in reference to the statute of limitations, and that question does not arise in this case, except it is an essential fact, in order to constitute the offense, that the fact must happen on the Sabbath-day, and it is alleged that the fact happened on the Sabbath-day. It is said, however, that it not being alleged that the fact happened on a certain day of the • month, and the allegation that the fact happened on a Sabbath-day being merely a conclusion of the pleader, the petition is defective. It seems to us, however, that the allegation is an allegation of fact. To say that this or that was done on the Sabbath-day, or this is the Sabbath-day, is the assertion of a fact and not a mere conclusion. It is true one may be mistaken about the asserted fact, so as to any asserted fact; but, nevertheless, a fact is asserted.
*117It is also said the allegation “ was not a work of necessity or charity” is but the conclusion of the pleader. But, it seems to us, that this allegation is an allegation of fact, not a mere conclusion. The acts complained of are specifically set forth, and it is alleged that they were not acts of necessity or charity. If it appeared from the acts set forth as having been done on the Sabbath, that they were a “ work of necessity or charity,” the petition would be demurrable, notwithstanding the allegation that they were not a “ work of necessity or charity.” This would not be for the reason that the allegation “ not a work of necessity or charity ” was but a conclusion of the pleader, but for the reason that, as it appeared from the acts set forth, that it was a work of necessity or charity, and the allegation that it was not, although an allegation of fact, was inconsistent with such allegation, hence it was neutralized. But it does not appear from the alleged facts that it was necessary to perform the work on that Sabbath-day. It is true that this court has decided that running a passenger train, etc., on the Sabbath-day was a work of necessity, the court saying “ the law regards that as necessary which the common sense of the country, in its ordinary mode of doing business, regards as necessary.” (See The Commonwealth v. The L. & N. R. R. Co., 80 Ky., 291" court="Ky. Ct. App." date_filed="1882-05-30" href="https://app.midpage.ai/document/commonwealth-v-louisville--nashville-railroad-7131300?utm_source=webapp" opinion_id="7131300">80 Ky., 291.)
It is also true that the company would be excusable for repairing any part of its track on the Sabbath-day that was suddenly rendered unsafe where delay might endanger the safety of passengers or property in its charge, and where, if it failed to make the repairs on that day because of the fact that it was the Sabbath-day, and injury were to befall the passengers or property in its charge in eonse*118quence of such, failure, the company would be responsible. But this rule does not apply to the making of the ordinary repairs of its track that, having in view the safety of the passengers and property in charge, can be done on any other day than Sunday with equal safety. As intimated, it does not appear, from the facts stated, that this could not have been done on any other day than the Sabbath.
The judgment is affirmed.