Smith v. Boston & Maine Railroad

• Decision Date: 07 September 1876
• Citation: 120 Mass. 490
• Parties: Christopher Smith v. Boston and Maine Railroad
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

120 Mass. 490

Christopher Smith v. Boston and Maine Railroad

Supreme Court of Massachusetts

September 7, 1876

Argued November 15, 1875.

Suffolk. Tort for personal injuries sustained by the plaintiff through the negligence of the defendant's servants.

At the trial in the Superior Court, before Putnam, J., the plaintiff testified that he was a machinist in the employ of the defendant corporation during week days, his business being the repair of their locomotives; that he had been at work all the week previous to the accident, and on Sunday, August 23 1873, in the afternoon, having attended church in the morning, he walked from his residence in Leverett Street Boston, to Charlestown, to see if a person of whom he had hired a house during the previous week, and to which he was to move on the following Monday, had got the house cleaned that he saw the person, and on his return, while passing along Austin Street, over which the railroad ran, and while standing on the Charlestown side of the gate, he was hit by one of the gates, which was struck and broken by a locomotive engine passing at the time, as the gate was being swung across the street by the servants of the corporation, and sustained the injury complained of.

The wife of the plaintiff testified that her husband and herself were boarding at that time with her mother in Boston; that her mother had told her during the previous week that she wanted their room for another person, and she had told her mother that they would leave their room on Monday; that her mother had let it to her son, who was to take it the following Tuesday; that they had engaged the room in Charlestown for Monday, and had their goods all packed up on Saturday; that her husband, the plaintiff, walked over to Charlestown on Sunday, as stated by him, and was assisted home by two men, severely injured; and that on the following Monday they moved to Charlestown, as they had proposed to do.

The defendant contended that it appeared upon this evidence that the plaintiff was travelling on the Lord's day, not "from necessity or charity," and so was not entitled to maintain this action. The judge so ruled, and ordered a verdict for the defendant. The plaintiff alleged exceptions.

Exceptions overruled.

S. B. Allen for the plaintiff.

C. F. Choate, for the defendant.

Colt J. Endicott & Lord, JJ., absent.

OPINION

Colt, J.

The plaintiff walked from his home in Boston to Charlestown on the Lord's day, for the purpose of ascertaining, from the person of whom he had hired a house, whether it had been cleaned, so that he could move into it with his family the next day; on his return, he received the injury complained of, through the alleged carelessness of the agents and servants of the defendant corporation. The question is whether, at the time of the injury, he was unlawfully travelling within the meaning of the statute which subjects to punishment by fine "whoever travels on the Lord's day, except from necessity or charity;" Gen. Sts. c. 84, § 2; because, if he was so travelling, it is contended the law will afford him no remedy for the injury. It seems to have been conceded at the trial that such unlawful act was in this case a cause directly contributing to the plaintiff's injury.

The question is settled by the previous decisions of this court...