Day v. Highland S. R. Co.

• Decision Date: 07 May 1883
• Citation: 135 Mass. 113
• Parties: Willie W. Day v. Highland Street Railway Company
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

135 Mass. 113

Willie W. Day v. Highland Street Railway Company

Supreme Court of Massachusetts

May 7, 1883

Argued March 13, 1882

Suffolk. Tort for personal injuries occasioned, on Sunday, June 20 1880, to the plaintiff, a conductor in the employ of the Metropolitan Railroad Company, while standing on the step on the side of an open street ear, and leaning into the car for the purpose of collecting fares, by being struck by a car of the defendant corporation passing on a parallel track. At the trial in the Superior Court, before Staples, J., the jury returned a verdict for the plaintiff; and the defendant alleged exceptions. The facts appear in the opinion.

Exceptions sustained.

The case was argued in March, 1882, by G. F. Verry, (J. Hewins with him,) for the defendant, and by S. B. Allen (W. B. Allen with him,) for the plaintiff; and was afterwards submitted on briefs by the same counsel.

OPINION

Colburn J.

The question whether the car, upon which the plaintiff was conductor, was being run in violation of the Gen. Sts c. 84, §§ 1, 2, at the time of the accident, or whether there was evidence in the case which would warrant the jury in finding that the car was not being run in violation of the statute, lies at the foundation of the case. For if the car was run lawfully, for the purpose of carrying passengers, the plaintiff was violating no law in performing the usual duties of conductor of the car, and his rights and obligations were substantially, if not entirely, the same, though it was the Lord's day, as they would have been on any other day.

We are of opinion that the whole evidence in the case shows that this car was being run for substantially the same purposes, and from the same motives, that street cars are usually run on secular days, for the purpose of accommodating the public generally, and earning money from any one who might see fit to travel upon it. And we are of opinion that a car so run is run in violation of law, though some of its passengers may be lawfully travelling.

It is not within our province to determine the wisdom or expediency of the law, or how far there has been a change in public sentiment in relation to the proper manner of observing the Lord's day. These considerations are for the Legislature. We can only take the law as it is written, and apply it according to its obvious meaning and the intention of the Legislature.

We do not intend to decide that a street car may not be so run on Sunday as to come within the exception of the statute, and be employed in a work of necessity or charity. We only decide that in this case there was no evidence which would warrant a jury in finding that this car was run from considerations of necessity or charity, and that the jury should have been so instructed. We cannot hold that the mere fact that some of the passengers on the car were lawfully travelling rendered the running of the car lawful. Commonwealth v. Sampson, 97 Mass. 407. Commonwealth v. Josselyn, 97 Mass. 411.

The plaintiff was engaged in performing his ordinary duties as conductor of a street car, and in performing those duties he was doing labor or work. Though he was travelling, he was primarily laboring, and his travelling was merely an incident of the kind of work in which he was engaged. The car being run in violation of law, he was both laboring and travelling on the Lord's day in violation of law. The question then arises whether his violation of law contributed to cause his injury.

The general principles applicable to the case are well settled in this Commonwealth. The question has more frequently arisen in cases of travelling, doubtless for the reason that travelling is the more common form in which the statutes for the observance of...