Davis v. City of Somerville

• Decision Date: 30 June 1880
• Citation: 128 Mass. 594
• Parties: Charles Davis v. City of Somerville
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

128 Mass. 594

Charles Davis v. City of Somerville

Supreme Court of Massachusetts

June 30, 1880

Suffolk. Tort for personal injuries occasioned to the plaintiff while travelling upon a highway in the defendant city, which was alleged to be out of repair. Trial in the Superior Court before Bacon, J., who allowed a bill of exceptions in substance as follows:

It appeared in evidence that the plaintiff, in company with a lady friend, both living in Boston, drove from Boston to Cambridge in the afternoon of Sunday, October 28, 1877, to attend a funeral; that, upon leaving Mount Auburn cemetery the lady asked him to take her back by way of Charlestown, so that she could call there upon her sister-in-law; and that he assented, and while so doing the accident happened. Neither the plaintiff nor the lady testified as to the purpose for which the call was to be made; nor did it appear that the plaintiff had any acquaintance with the sister-in-law.

The defendant requested the judge to instruct the jury as follows: "If the jury find that, upon leaving Mount Auburn cemetery, the plaintiff, at the request of his lady companion, undertook to drive her from Cambridge through Somerville to Charlestown, or from Cambridge to Charlestown for the purpose of enabling her to call upon a sister-in-law residing in Charlestown, this, in the absence of any further testimony showing, or tending to show, the call to have been one of necessity or charity, would be a travelling within the prohibition of the statute relating to the Lord's day and the plaintiff cannot recover."

The judge declined to rule as requested; explained to the jury the meaning of the words "charity" and "necessity," in the Lord's day act, to which no objection was taken; and instructed the jury as follows: "It must appear that the plaintiff was travelling lawfully at the time when the accident occurred. The plaintiff could lawfully travel for the purpose of going to or returning from a funeral on the Lord's day; and if, in fact, he was returning from a funeral, though by a different route, he was not travelling unlawfully, unless the route taken by him was so unreasonable and inconvenient as to show that his purpose was not to return, but to do something else not a work of necessity or charity. The fact that the plaintiff took a route back from Mount Auburn different from that by which he went, and that he took that route for the purpose of enabling the lady with him to make a call upon her sister-in-law, are facts to be considered by the jury, bearing upon the question whether he was travelling for any other purpose than that of going to and returning from the funeral, or for the purpose of doing anything not a work of charity or necessity. But these facts are not conclusive evidence, so that the court can say to the jury that, as matter of law, they ought to return a verdict for the defendant, on the ground that the plaintiff was travelling in violation of law, but only evidence proper to be submitted to the jury as bearing on the question to be determined by them, whether the plaintiff was at the time of the alleged injury travelling in violation of law."

The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.

Exceptions sustained.

The case was argued at the bar by S. C. Darling, for the defendant, and N. B. Bryant, for the plaintiff; and afterwards submitted on briefs to all the judges.

OPINION

Ames, J.

The statute making...