“Oh, you naughty man!” I cried. “Have you no respect for the Sabbath day? or perhaps you wanted to have a ride without giving a quid pro quo?”
“How could I do that?” queried my friend.
“Don’t you know,” replied I, “that a man cannot recover for the hire of a horse and buggy, let on Sunday for a pleasure drive?[50] But if the livery man imagined that the errand on which you were bound was one of necessity or charity, he would not be punishable for a breach of the Sunday laws.”[51]
“Well, but my drive was a work of charity (according to its original meaning), if not of necessity. I was going to see Miss Blank.”
“That very point was raised sometime since in Massachusetts, where travelling on the Lord’s Day is forbidden. A young man, who had to work all the week, was going to visit his betrothed on Sunday, when he came to grief through a defect in the highway. The question whether this might not have been a work of necessity or charity, was raised, but unfortunately, the matter was not decided.[52] In one case, however, it was held that a man might lawfully hire a horse and carriage to go and visit his paternal progenitor, who resided in the country.[53] In some of the States, where the laws for the observance of the Sabbath are rigorous, and travelling on that day is forbidden, young swells hire horses and race them, knowing that they will not have to pay for any injuries done to the old nags;[54] not even if they die from the Jehu-like driving.[55] But, come, let us hear more about Miss Blank, Joney, my boy.”
“I presume,” said Jones, “that one hurt while travelling would have to show that the journey was from necessity or charity? Would one have to stay in the house all day?”
“Oh, no; even in Puritanic Boston it has been decided that walking half a mile or so in the streets on a Sunday evening, without any intention of going anywhere save home again, is not travelling within the meaning of the act.[56] And of course one may go to church or to his place of worship, no matter what may be the style of the ceremony. Once Mrs. Feital, a Spiritualist, went to a camp-meeting where Miss Ellis was put in a box with her hands tied: music was heard coming from the box, and when it was open Miss Ellis was found with her hands untied, and a ring that had been on her finger was then on the end of her nose. On her way home from these amusing, if not instructive services, Mrs. Feital broke her leg on the cars. The railway company tried to prove that this was not divine service, but the jury gave a verdict of $5,000 damages, and the court refused to interfere.[57] On the other hand, a poor sinner who was injured on a horse car while going to visit a friend, was held to have violated the sanctity of the Sabbath and broken the law of the land, and so was precluded from recovering damages.”[58]
“But is not the rule in Massachusetts exceptional?” queried my companion.
“In Vermont and Maine, as well as in Massachusetts, it has been held that if one is driving or travelling on Sunday, without excuse, he cannot maintain an action against the municipality for any damage he may suffer through defects in the highway, on the ground that the town is not legally liable to furnish a man with a safe highway at a time when he is by law forbidden to travel on it.[59] Some of the decisions in these States depend upon the peculiar legislation and custom of the State, more than on any principle of justice or law;[60] and they cannot be sustained consistently with the broad principles of the law of negligence laid down by the courts generally.[61] The fact that one was doing an unlawful act when injured will not prevent a recovery, unless the act was such as would naturally tend to produce the injury.[62] If one breaks the law, the law itself, and not a carrier or town, should inflict the penalty. In other States,—New Hampshire, New York, Pennsylvania, Wisconsin, for example, one can sue for damages though injured while travelling on Sunday.[63] And in England Sunday travellers are especially favored by the legislature, for to none others can the publican dispose of beer, wine or spirits on that day.[64] But come, what about Miss Blank?”
“By the way,” said Jones, “have you seen that anecdote told by Erskine about Lord Kenyon, and which has recently been brought to light?”