Cratty v. City of Bangor , 57 Me. 423 ( 1870 )

Danforth, J.

That the statute renders towns and cities liable for injuries, on account of a defect in the highway, to travelers on foot, as well as those with horses, has been too often and too long recognized by the courts, to be now reversed without an act of the legislature. Upon this point the ruling is right, and we think in accordance with a fair rendering of the statute.

A person traveling upon the sabbath, unless for charity or necessity, is so far in the violation of law that he cannot maintain an action for injuries by a defect of the way. Hinckley v. Penobscot, 42 Maine, 81.

No distinction is made between those who travel in town, and those who travel from town to town. The former are as much in violation of the law as are the latter. Tillock v. Webb, 56 Maine, 100.

Nor does the statute for the due observance of the sabbath make any distinction between those who travel on foot and those who travel in carriages. It is the traveling which is prohibited. R. S., c. 124, § 20, as amended by Public Laws of 1864, c. 281.

The plaintiff was not out for a walk only, as in Hamilton v. Boston, 14 Allen, 475, but was going to a placo other than his home, and that, too, for pleasure. In the opinion in the case last cited, Gray, J., says : “But, confining ourselves to the facts disclosed by this bill of exceptions, we are of the opinion that a person walking with a friend on Sunday evening, less than half a mile, with no apparent purpose of going to or stopping at any place but his own home, much less of passing out of the city, and no object of business or pleasure, except open air and gentle exercise, is not guilty of traveling,” &c., thus plainly intimating that in such a case as the one at bar, the decision would have been different.

If our statute is wrong, if those who pass to a place other than their home, within their own town, for purposes of pleasure, should be exempt irom the provisions of the statute, the legislature is the proper tribunal to make the change. It is, however, very clear that the plaintiff met with his accident while in the violation of the plain provisions of the statute, and it is not competent for the court to make exemptions from the law which the legislature have not. Exceptions sustained.

Appleton, C. J.; Cutting, Walton, and Tapley, JJ., concurred.