Smith v. Boston & Maine Railroad
1876 Mass. LEXIS 230
Mass.
1876
Check Treatment
Colt, J.

The plaintiff walked from his home in Boston to Charlestown on the Lord’s day, for the purpose of ascertaining, from the person of whom he had hired a house, whether it had been cleaned, so that he could move into it with his family the *492next day; on Ms return, he received the injury complained of, through the alleged carelessness of the agents and servants of the defendant corporation. The question is whether, at the time of the injury, he was unlawfully travelling within the meaning of the statute which subjects to punishment by fine “ whoever travels on the Lord’s day, except from necessity or charity; ” Gen. Sts. e. 84, § 2; because, if he was so travelling, it is contended the law will afford Mm no remedy for the injury. It seems to have been conceded at the trial that such unlawful act was in tMs case a cause directly contributing to the plaintiff’s injury.

The question is settled by the previous decisions of this court. In Bosworth v. Swansey, 10 Met. 363, it was decided that a person travelling on the Lord’s day could not recover for injuries received from a defect in the Mghway, unless he could show that he was travelling from necessity or charity, and that the burden was on him to bring himself within the excepted cases. See also Jones v. Andover, 10 Allen, 18. In Heland v. Lowell, 3 Allen, 407, it was held that a person driving across a bridge unlawfully faster than a walk could not recover for a defect in it caused by a hole in the floor, into wMch the horse stepped. In Stanton v. Metropolitan Railroad, 14 Allen, 485, one who was travelling on Sunday in a horse car from one city to another for the purpose of visiting a stranger, and who did not show that his visit was one of necessity or charity, was held to be travelling in violation of the law, and not entitled to redress in a court of justice, for an injury which he would not have received but for such violation. In Bennett v. Brooks, 9 Allen, 118, it was declared to be the purpose of the statute to prevent all acts of a secular nature belonging to or connected, with ordinary business or common .vorldly affairs, although they might not fall within the line of the daily business or occupation in which a person happened to be employed. And, in the line of these decisions, it was recently held that one who travels on Sunday by walking along the highway, for the purpose of seeing his employer and inducing him to change his hours of labor, in order that he may sleep better, is not travelling from necessity or charity, so as to be able to maintain an action against the town for an injury from a defect in the highway. Connolly v. Boston, 117 Mass. 64. See also McGrath v. Merwin, 112 Mass. 467.

*493A majority of the court think that the case is governed by these decisions, and that they compel us to the conclusion that the plaintiff, on the facts stated, does not bring himself within the clause protecting those who travel from necessity or charity; and that the illegal act of travelling on the Lord’s day might properly be treated as a cause directly contributing to the injury of which he complains.

It is not easy to define as a matter of law what state of facts will make travelling an act of necessity or charity, within the exception in the Lord’s day act, or when the plaintiff’s own illegal conduct can be said to be a direct, rather than a remote, cause contributing to the injury. The first of these questions is to be determined to a great extent by considerations of moral fitness and propriety; the last by the evidence in each case bearing upon the complicated relations of cause and effect. In most cases, both questions should be submitted to the jury, with proper instructions. Feital v. Middlesex Railroad, 109 Mass. 398. But in the present case, in the light of the cases cited, there is no evidence which would justify a verdict for the plain tiff. Exceptions overruled.