Flagg v. Inhabitants of Millbury , 58 Mass. 243 ( 1849 )

Wilde, J.

At the trial, it became material to ascertain how long the defect, if any, had existed before the injury to the plaintiff occurred; it being necessary to be proved, to entitle* the plaintiff to recover, that it had so existed for the space of twenty-four hours. Rev. Sts. c. 25, § 22. Upon this point the defendants’ counsel requested the court to instruct the jury, that in the computation of time Sunday was to be excluded; but the court held otherwise, and so instructed the jury; and we are of opinion that this instruction was right.

A. G. Randall, (with whom was P. C. Bacon) for the defendants. C. Allen, for the plaintiff.

The argument for the exclusion of Sunday is founded on the erroneous assumption, that to repair a defect in a highway, however necessary it may be to secure the public safety, would be a violation of the statute to enforce the observance of the Lord’s day. Rev. Sts. c. 50, § 1. But it is quite clear, that the statute is not to be so construed; on the contrary, works of necessity and charity are expressly excepted from the prohibition of labor, business and work in the first section ; and, certainly, any work and labor necessary to be done to secure the public safety must come within the true meaning of the exception in the statute.

By the word “necessity” in the exception we are not to understand a physical and absolute necessity; but a moral fitness or propriety of the work and labor done, under the circumstances of any particular case, may well be deemed necessity within the statute; and so it was decided, in the construction of a similar exception, in the prohibition against travelling on the Lord’s day, in the statute of 1791, c. 58, § 2. Commonwealth v. Knox, 6 Mass. 76; Pearce v. Atwood, 13 Mass. 354. Now, when a defect in the highway is discovered on the Lord’s day, which may endanger the limbs and the lives of travellers, it is not only morally fit and proper that it should be immediately repaired, but it is the imperative duty of the town, which is bound to keep the highway in repair, to cause it so to be done, or to adopt means to guard against the danger, until it can be done, and work and labor for this purpose is no violation of the law, or of religious duty.

Exceptions overruled.