Lyons v. Desotelle

Morton, J.

In an action of tort for injuries to the plaintiff’s person or property, if his own illegal act or other negligence contributed to his injury, he cannot recover. But he is not precluded from recovering by the fact that he is at the time doing an illegal act, if such illegal act did not contribute to his injury. McGrath v. Merwin, 112 Mass. 467 , and cases cited.

When a man in travelling sustains an injury from a defect in the highway or from an accidental collision with the vehicle of another traveller, his act of travelling is necessarily a contributing cause of the injury. If the act of travelling is unlawful, then his own unlawful act is a contributing cause of his injury, and prevents his recovery.

The statute prohibits any person from travelling “ on the Lord’s day, except from necessity or charity.” Gen. Sts. e. 84, § 2. Whoever travels on the Lord’s day, except from necessity or charity, is acting in violation of the law. Such act of travel-ling itself is unlawful, and if, in the course and as an incident of such travelling, the traveller sustains an injury, his unlawful act necessarily is a contributing cause of the injury. It has, therefore, been uniformly held in this Commonwealth that in such a case the plaintiff cannot maintain an action for his injury. Smith v. Boston & Maine Railroad, 120 Mass. 490 , and cases cited.

In the case at bar, the defendant requested the court to instruct the jury that “ if the plaintiff was travelling for pleasure on the Lord’s day, and such travelling contributed to the injury which befell him, he cannot recover.” The court refused this request, and instructed the jury that “ it makes no difference whether the plaintiff was then in violation of the law relating to the Lord’s day or not.” The defendant was entitled to the instruction requested by him, and it was not covered by any of the instructions given. It is true that the court instructed the jury, that “ if the plaintiff went up there for pleasure and received injuries by the defendant’s negligence, he can recover, unless his *390 own carelessness or negligence contributed to the injury,” implying that, if his own negligence contributed to the injury, he could not recover. But the whole instructions, taken in connection with the refusal to give the instruction requested, would naturally lead the jury to understand that if the unlawful act of the plaintiff in travelling on the Lord’s day contributed to his injury, yet he could recover unless some other negligence on hie part was a contributing cause.

A majority of the court is therefore of opinion that the instructions were erroneous. Exceptions sustained.