[245]. Hinckley v. Penobscot, 42 Me. 89; Smith v. Boston R. Co., 120 Mass. 490 (injury to passenger travelling on train in violation of Sunday law) Accord.
“The provisions of chapter ninety-eight of the Public Statutes relating to the observance of the Lord’s day shall not constitute a defence to an action for a tort or injury suffered by a person on that day.” Mass. Acts 1884, c. 57, § 1.
[246]. The arguments are omitted; also that part of the opinion which relates to the question of contributory negligence.
[247]. Atlanta Steel Co. v. Hughes, 136 Ga. 511 (plaintiff working on Sunday); Black v. Lewiston, 2 Idaho, 276; Louisville R. Co. v. Buck, 116 Ind. 566 (plaintiff working on Sunday); Chicago R. Co. v. Graham, 3 Ind. App. 28; Schmid v. Humphrey, 48 Ia. 652; Taylor v. Star Coal Co., 110 Ia. 40 (plaintiff working on Sunday); City v. Orr, 62 Kan. 61; Illinois R. Co. v. Dick, 91 Ky. 434 (plaintiff working on Sunday); Opsahl v. Judd, 30 Minn. 126; Corey v. Bath, 35 N. H. 530; Delaware R. Co. v. Trautwein, 52 N. J. Law, 169; Platz v. City, 89 N. Y. 219; Mohney v. Cook, 26 Pa. St. 342; Baldwin v. Barney, 12 R. I. 392; Hoadley v. International Paper Co., 72 Vt. 79 (plaintiff working on Sunday) Accord.
In Johnson v. Town of Irasburgh, 47 Vt. 28, the Supreme Court of Vermont, while agreeing with the reasoning in Sutton v. Wauwatosa, on the question of causation, nevertheless reached the same result as in Bosworth v. Swansey, holding that the plaintiff was not entitled to recover. This conclusion was arrived at upon grounds which were not discussed in the above Wisconsin and Massachusetts cases. The very able opinion of Ross, J., upon this point (47 Vt. 35–38), may be summarized as follows:—
The liability of the town for the insufficiency of the highway is purely statutory. The duty to travellers imposed by the statute is only a duty to that class of travellers who have the right to pass, to those who are legally travelling. The legislature did not intend to impose a duty upon towns “in behalf of a person who was forbidden to use all highways for the purposes of travel, and at a time when he was so forbidden to use them. Can he be a traveller within the purview of the statute who is forbidden to travel?” The duty and liability “are co-extensive with the purposes for which persons can legitimately use the highways, and no greater.” “The plaintiff when injured was forbidden by law to use the highway, and by reason thereof the defendant town owed him no duty to provide any kind of a highway, and therefore was under no liability for any insufficiency in any highway.”
[248]. Section 3 of this statute is as follows:—
“The officers and men of the Boston Protective Department, with their teams and apparatus, shall have the right of way, while going to a fire, through any street, lane, or alley in the city of Boston, subject to such rules and regulations as the city council and the fire commissioners may prescribe, and subject also to the rights of the Boston Fire Department; and any violation of the street rights of the Boston Protective Department shall be punished in the same manner as is provided for the punishment of violations of the rights of the Boston Fire Department in chapter three hundred and seventy-four of the acts of eighteen hundred and seventy-three.”
[249]. Monroe v. Hartford R. Co., 76 Conn. 201; Tackett v. Taylor, 123 Ia. 149; Baker v. Portland, 58 Me. 199; Bourne v. Whitman, 209 Mass. 155; Chesapeake R. Co. v. Jennings, 98 Va. 70 Accord.
[250]. Atlantic R. Co. v. Weir, 63 Fla. 69; Lockridge v. Minneapolis R. Co., 161 Ia. 74 Accord. See Lindsay v. Cecchi, 3 Boyce, 133; Hyde v. McCreery, 145 App. Div. 729.