Buck v. City of Biddeford

• Decision Date: 08 March 1890
• Citation: Buck v. City of Biddeford, 82 Me. 433, 19 A. 912 (Me. 1890)
• Parties: BUCK v. CITY OF BIDDEFORD.
• Court: Maine Supreme Court

19 A. 912

82 Me. 433

BUCK

v. CITY OF BIDDEFORD.

Supreme Judicial Court of Maine.

March 8, 1890.

(Official.)

Report from supreme judicial court, York county.

Hamilton & Haley, for plaintiff.E.Stone, for defendant.

WALTON, J.As the plaintiff was driving along one of the streets of the city of Biddeford, his horse's foot slipped into the grating covering a cesspool, and the horse was thereby thrown down, and so badly injured that it was necessary to kill him.The plaintiff claims that the city is liable for the value of his horse.The city denies its liability.

1.The accident occurred on Sunday, and it is claimed that on this account the plaintiff is precluded from recovering.We think not.It is true that all unnecessary traveling on the Lord's day is prohibited.So are all other kinds of worldly business.And it has been decided that, when one receives an injury through a defect in a highway, while unlawfully traveling on the Lord's day, a recovery for the injury cannot be had.Cratty v. Bangor, 57 Me. 423.But all traveling on the Lord's day is not unlawful.If it was, one could not visit the sick, or go to church, nor attend a funeral, on that day, without being guilty of a crime.And it was held in O'Connell v. Lewiston, 65 Me. 34, that one might lawfully travel on the Lord's day for exercise in the open air.And it was held in Crosman v. Lynn, 121 Mass. 301, that to go after a domestic on the morning of the Lord's day, and bring her home to assist in the preparation of the morning meal, was not unlawful; that such an act might properly be re. garded as a work of necessity.In this casa a woman had been visiting at the plaintiff's house, and she informed him on the Lord's day that she had got to go home that night.It was in December.The day was cold and windy, and the distance was two miles.He thereupon took his horse and sleigh, and was carrying her home at the time of the accident.We do not think the act was unlawful.We think it may be justified on the ground of necessity or as a deed of charity.

2.It is claimed that the way was not defective.We think it was.It had a cesspool in it, with an iron cover; and the evidence shows that between one of the outside bars and the rim was a space wide enough to receive a horse's foot, and that such was the width of the space was demonstrated by the fact that the foot of the plaintiff's horse did slip into it, and was there held so fast as to throw him down, and it was with great difficulty that his foot was extricated; and, when it was extricated, it was so torn and injured that the horse was ruined, and had to be killed.We think the street must be regarded as having a very dangerous defect in it.

3.Another question is whether the city had sufficient notice of the defect.We think it did.It was decided in Holmes v....