Beacham v. Proprietors of Portsmouth Bridge

• Decision Date: 13 March 1896
• Citation: 68 N.H. 382,40 A. 1066
• Parties: BEACHAM et al. v. PROPRIETORS OF PORTSMOUTH BRIDGE.
• Court: New Hampshire Supreme Court

40 A. 1066

68 N.H. 382

BEACHAM et al.

v. PROPRIETORS OF PORTSMOUTH BRIDGE.

Supreme Court of New Hampshire. Rockingham.

March 13, 1896.

Action on the case by R. H. Beacham and another against the Proprietors of Portsmouth Bridge. Facts found by the court. The defendants own and possess a toll bridge over the Piscataqua river between Portsmouth and Kittery. On Sunday, April 29, 1894, the plaintiffs, having paid the required toll, were crossing the bridge, on a pleasure excursion, with a barge drawn by four horses, and while on that portion of the bridge within the state of Maine one of the horses was injured by a defect in the bridge caused by the defendants' negligence. The plaintiffs seek to recover damages for the injury. The laws of Maine relating to the questions involved are a part of the case. A verdict in favor of the plaintiffs for $150 was filed, which is to be set aside, and there is to be judgment for the defendants, if the action cannot be maintained. Otherwise there is to be judgment on the verdict. Judgment for defendants.

Samuel W. Emery, for plaintiffs.

Prink & Marvin, for defendants.

CHASE, J. If there is a conflict between the lex loci and the lex fori, the former governs in torts the same as in contracts, in respect to the legal effect and incidents of acts. Cooley. Torts, 471; Story, Confl. Laws (7th Ed.) § 307d; Mostyn v. Fabrigas, Cowp. 161; Phillips v. Eyre, L. R. 4 Q. B. 225, 239; Id., L. R. 6 Q. B. 1, 28; Smith v. Condry, 1 How. 28; Dennick v. Railroad Co., 103 U. S. 11; Walsh v. Railroad Co., 160 Mass. 571, 36 N. E. 584; Henry v. Sargeant, 13 N. H. 321; Laird v. Railroad Co., 62 N. H. 254. Therefore, whatever would be a defense to this action if it had been brought in the state of Maine is a defense here, although it would not be, if the cause of action had arisen in this state.

By section 20, c. 124, Rev. St. Me., a person who travels on the Lord's day, except from necessity or for charity, may be punished. Walking for exercise (O'Connel v. City of Lewiston, 65 Me. 34; Davidson v. City of Portland, 69 Me. 116), carrying a disabled person to a ride to give him the benefit of air and exercise (Sullivan v. Railroad Co., 82 Me. 196, 19 Atl. 16), and carrying a visitor home who insists upon going (Buck v. City of Biddeford, 82 Me. 433, 19 Atl. 912), come within the exception; but traveling for pleasure is an offense under the statute, and has the effect to disable the offender from recovering damages for an injury to his person or team while so traveling, caused by the negligence of another (Hinckley v. Inhabitants of Penobscot, 42 Me. 89; Cratty v. City of Bangor, 57 Me. 423; Parker v. Latner, 60 Me. 528; Wheelden v. Lyford, 84 Me. 114, 24 Atl. 793).

The plaintiffs raise the quasre whether this is now the law of Maine, in view of the decision in Baker v. City of Portland, 58 Me. 199. In that case the plaintiff's cause of action was an injury received in consequence of a defective highway, and the defense was that, at the time of the injury, the plaintiff was violating a city ordinance which prohibited driving at a faster rate of speed than six miles an hour, under a penalty. It was held that a violation of the ordinance would not be a defense unless it contributed to produce the injury. Of cases in which it had been held that a person violating a...