134 Mass. 95 | Mass. | 1883
The plaintiff was sailing Ms yacht on the Lord’s day, and thus travelling in violation of the Gen. Sts. c. 84, § 2, which permits this only for reasons of necessity or charity, none of which are assigned by him. He contends that he may recover upon the first count of his declaration, alleging that the defendant carelessly and negligently ran its steamboat into his yacht while thus sailing. Where the illegal act of a plaintiff contributes to the injury he recéives from the carelessness of another, he cannot recover; but if his illegal act is independent of the injury, he is not thereby precluded from recovering, although at the time he was acting in violation of law. McGrath v. Merwin, 112 Mass. 467. Lyons v. Desotelle, 124
There was evidence in the case tending to show that the defendant was a common carrier of passengers, but the question whether the facts would present a case such as contemplated by the terms of the St. of 1877, c. 232,
The second count of the plaintiff’s declaration alleges, not a careless and negligent act on the part of the defendant in running down his boat, but a wanton and malicious one. Upon such a state of facts, although the plaintiff was in violation of the law forbidding travelling upon the Lord’s day, his title to an action would be independent of his unlawful act. He would not thereby forfeit the general protection of the law, and the injury in such supposed case would proceed solely from the wrongful act of the defendant. Kidder v. Dunstable, 11 Gray, 342. Smith v. Gardner, 11 Gray, 418. Counter v. Couch, 8 Allen, 436. Welch v. Wesson, 6 Gray, 505. Spofford v. Harlow, 3 Allen, 176. Damon v. Scituate, 119 Mass. 66. Smith v. Conway, 121 Mass. 216. The learned judge who presided apparently recognized this as the law; but, as in his opinion “ the evidence of the plaintiff, uncontradicted and uncontrolled, would
These with many other authorities were carefully considered in Howe v. Newmarch, 12 Allen, 49; and it was there held, that, if the act of the servant was “ done in the execution of the authority given him by his master, and for the purpose of performing what the master has directed, the master will be responsible, whether the wrong done be occasioned by negligence, or by a wanton or reckless purpose to accomplish the master’s business in an unlawful manner.” The facts in that case, as reported, tended to show that a servant of the defendant, who was a baker, while pursuing the business of his master in driving from house to house and delivering bread, wilfully and intentionally drove his horse upon the plaintiff, by driving unlawfully upon the sidewalk against the plaintiff’s remonstrance; and the instruction requested by the plaintiff, that “ if at the time of the injury the defendant’s servant was engaged in the business of the defendant, and within the scope of his duty as such servant, and he drove the horse over the plaintiff and did him an injury, the defendant is responsible, whether the act was done wilfully or negligently, the plaintiff being in the exercise of due care himself,” was deemed to have been stated with substantial accuracy.
The evidence offered in the present case somewhat resembles that in Howe v. Newmarch, ubi supra. The persons in charge of the steamboat which did the injury were the servants of the
The case of Howe v. Newmarch has been since repeatedly recognized, and seems to us to express the true rule upon the subject to which it relates. Ramsden v. Boston & Albany Railroad, 104 Mass. 117. Levi v. Brooks, 121 Mass. 501. George v. Gobey, 128 Mass. 289.
Upon the second count of the plaintiff’s declaration, there should therefore be a New trial.
Section 1 of this act, which took effect on May 15, 1877, provides that the Gen. Sts. c. 84, § 2, “ prohibiting travel on the Lord’s day, shall not constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by a person so travelling.”