Schmid v. Humphrey
48 Iowa 652
Iowa
1878
Check Treatment
Seevers, J.

1. DAMAGES S hofsef'wofk on Sunday. I. The court instructed the jury as follows: “If you find the plaintiff otherwise entitled to recover you are instructed that the fact the accident occurred on Sunday, while the plaintiff was riding on a businegg wni not defeat his right to recover. ”

The statute provides: “If any pеrson be found on the first day of the week, commonly called Sabbath, engaged in any riot, fighting, or offering to fight, or hunting, shooting, carrying fire-arms, fishing, horse-racing, dancing, or in any manner disturbing any worshiping assembly or private family, or in buying or selling property of any kind, or in any labor, the work of necessity or charity only excepted, every person so offending shall be punished.” Code, § 4072. Conceding the plаintiff was engaged in labor, does it therefore follow he cannot recover?

He is not seeking to enforce any contract which is prohibited by law, nor is he seeking to enforce any right obtained by the breach of any law. Suppose it be said thе plaintiff was doing something prohibited by law, but which in no manner concerned the defendant, or disturbed him ‍​​‌​​‌​‌​​​‌​‌‌‌​‌‌​​​‌​‌‌‌​‌​​​​‌‌‌‌​‌​​​​​‌‌‌​‍in any of his. rights or privileges, will it do in such a case to say that the plaintiff is no longer under the protection of the law, and that the defendant may with impunity, by the use of positive force or through negligence, do him an injury, and that no civil liability *654is incurred thereby ? Can the defendant be permitted to set up as a defense the fact that the plaintiff was doing something prohibited by law which did not in fact directly contribute to the injury? We think not. Wе are not aware there is any distinction between an act committed, by which a wrong is perpetrated, and the omission to do something by reason of which the same result is reached. Therefore, if one is knocked down and robbed on the Sabbath, сan'the thought be entertained for a moment that the wrong-doer would not be civilly liable? [His punishment, criminally, does not afford the injurеd party any redress.

It has been held that a trespasser may recover damages from one who sets spring guns on his premises in а negligent manner, whereby the trespasser is injured. Bird v. Holbrook, 4 Bing., 624; Hooker v. Miller, 37 Iowa, 613. And so may one who, while trespassing on ‍​​‌​​‌​‌​​​‌​‌‌‌​‌‌​​​‌​‌‌‌​‌​​​​‌‌‌‌​‌​​​​​‌‌‌​‍the lands of another, is bitten by dogs. Loomis v. Terry, 17 Wend., 496. The fact that a person is a trespasser does not constitute him an outlaw, and warrant another in negligently or wantonly injuring him. For the trespаss or wrong, whatever it may be, the wrong-doer is answerable to the offended law; but his rights as to other persons, and as to other trаnsactions, cannot be affected by that circumstance. A person may be traveling when he has no right to, or in a way prohibited by law, or without the payment of toll when it may be lawfully demanded, or at a rate of speed forbidden by law, or on the wrong side of the road, or may have left his team standing in a street without keeping it under his command as the law may require, and in none of these cases does his right of action for an injury sustained by the negligent act Of another depend on any of these circumstanсes, unless what he may have done directly contributed to the injury sustained. Gates v. The B., C. R. & M. R. Co., 39 Iowa, 45.

The fact that the plaintiff was at the place at the time he was injured did not directly contribute thereto. As well might it be said if he had never come to Iowa, or been born, *655he would not have been injured, and that, therefоre, by reason of such facts he contributed to the injury. If one knocks another down and senseless, and while-in that conditition and twо hours afterward he is robbed by another, the latter act could hardly be considered the proximate result of the former. Sо, here, the proximate cause of the injury was not because of the ‍​​‌​​‌​‌​​​‌​‌‌‌​‌‌​​​‌​‌‌‌​‌​​​​‌‌‌‌​‌​​​​​‌‌‌​‍fact the plaintiff was quietly and peaceably passing along the highway. The attack made on him was not the legitimate result of his being in the highway at that time and place. If,' on thе contrary, he had been racing or hallooing, or making any noise or disturbance likely to attract attention, or invite attack by the dogs, a different question would be presented.

In Massachusetts, New York, and other States, traveling oh the Sabbath is expressly prohibited, and in the former State it has been held that a person who travels on business or for pleasure cannot recover of a street railway company for injuries received in consequence of the negligence of the company while so traveling in their cars. Stanton v. Metropolitan R. Co., 14 Allen, 485. The contrary doctrine is held in New York. Carroll v. Staten Island R. Co., 58 N. Y., 126. In the former State it was held in Gregg v. Wyman, 4 Cush., 322, that the owner of a horse who let it on the Lord’s day,' to be driven for pleasure to a рarticular place, could not maintain an action of tort against the hirer for driving it to a different place, and in so dоing injuring it..

This doctrine is repudiated in Woodman v. Hubbard, 25 N. H. (5 Foster), 67, and Morton v. Gloster, 46 Maine, 420, and' it has been abandoned ‍​​‌​​‌​‌​​​‌​‌‌‌​‌‌​​​‌​‌‌‌​‌​​​​‌‌‌‌​‌​​​​​‌‌‌​‍in Massachusetts, and Gregg v. Wyman expressly overruled in Hull v. Corcoran, 107 Mass., 251; and' we cannot but regard Bosworth v. Swansey, 10 Met., 363, and other cases in that State, which hold that towns are not, liable fоr injuries caused to one who is traveling on the Sab-j •bath by reason of a defective highway, as much shaken by. the ruling in Hall v. Corcoran. But whether this be so оr not is not material, as it is barely possible that the liability .of towns may depend on a different principle. If not, we are *656¡prepared to say that such is not and ‍​​‌​​‌​‌​​​‌​‌‌‌​‌‌​​​‌​‌‌‌​‌​​​​‌‌‌‌​‌​​​​​‌‌‌​‍cannot be the rule in ¡this State.

The views herein expressed are sustained by Bigelow v. Reed, 51 Maine, 325; Baker v. City of Portland, 58 Id., 199; Moheny v. Cook, 26 Pa. St., 342; Sutton v. Wauwatosa, 29 Wis., 21; Kerwhacker v. C., C. & C. R. Co., 3 Ohio St., 172; Phil., Wil. & Balt. R. Co. v. Phil. Tow-boat Co., 23 How., 209.

II. The twelfth instruction has reference to the degree 'of сare to be exercised by the plaintiff after the horse became frightened. The rule of the instruction is that he must have used ordinary care. The appellant insists that, under the circumstances of this case, he should have been held to the exercise of extraordinary care. But, conceding there is a practical difference between the two, there is nothing in this case, which should take it out of the ordinary rule.

2. —:——. III. The appellant insists that the plaintiff’s “negligence contributed to the injury; ” “that plaintiff did not maintain his allegations of ownership or harboring the dogs by defendant;” “that the dogs were not proved vicious,” and “that no attack was proved; ” that is, as we understand, the dogs did not bite or attack the horse. We do not believe it essential that the dоgs should have bitten the horse, but it is sufficient if they ran after and barked a-t him, and there was evidence so tending. The instructions as to the sеveral matters above stated are not, we think, seriously questioned; but, if in error as to this, we have no hesitation in affirming their corrеctness. The real point made is that the evidence does mot support the verdict. There was evidence tending to support each point necessary to be proved by the plaintiff, and we are unable to say the verdict is not sufficiently supported ■by the evidence.

Affirmed.