O'Connell v. City of Lewiston

Virgin, J. The decision of this case involves the interpretation of K. S., c. 18, §§ 40 and 65, defining the liability of towns for injuries received through their defectiye ways, viewed in connection with that of c. 124, § 20, prohibiting traveling on the Lord’s day. The first section mentioned requires towns to open and keep their ways “safe and convenient for travelers;” and there is no provision requiring ways to be kept thus for any persons other than “travelers.” This being the extent of the provision is the full measure of liability. Peck v. Ellsworth, 36 Maine, 393. Section 65 providing a remedy for “any person” injured “through any defect or want of repair” in any public way, relates to those only for whom ways are established, to wit, “travelers.” Stinson v. Gardiner, 42 Maine, 248. Leslie v. Lewiston, 62 Maine, 468. In general terms, ways are established and constructed at the public expense for the accommodation of all persons who in performing the duties, or prosecuting the general pursuits of life whether of business or pleasure, have occasion to pass and repass along and upon them on foot, with horses and carriages, or with teams for the transportation of property. And persons thus using a public way are “travelers” within this statute, and are entitled to the remedies therein provided. When, however, they cease to use it for the substantial purposes for which it is established and appropriate it to uses foreign thereto, they can no longer claim to be “travelers” or be entitled to the remedies provided in behalf of “travelers.” This principle is' illustrated by numerous familiar decisions which need not be cited hero. Can a person recover for an injury received through a defect in a way while traveling in violation of the Lord’s day statute ? This question has been repeatedly decided in the negative in this and [38] several other states, while other courts of acknowledged learning and ability have arrived at the opposite conclusion. Was the plaintiff, at the time of receiving the injury complained of, traveling in violation of c. 124, § 20, which provides: “whoever, on the Lord’s day, . . travels, or does any work, labor or business on that day, except works of necessity or charity, . . shall be punished by fine,” &c. ? It is evident that the answer depends to a great extent on the meaning which the legislature intended to give to the word “travels” in this statute. For if the idea of traveling is precisely the same in the two statutes — if the term “traveler” as used in both are synonymous, then the plaintiff was violating the penal statute when she was injured, and cannot recover therefor, unless she was within the excepting clause. Although a particular word or phrase is generally used in one and the same sense as often as it occurs in the same chapter, the provisions of which pértain to the same general subject matter, it does not follow that it is to receive the same interpretation in a penal as in a remedial statute. That every passing along and upon a highway under c. 18 which constitutes traveling as there used and entitles the traveler to a remedy therefor provided for an injury received, does not, if done on Sunday, necessarily constitute a traveling within the provisions of c. 124, becomes evident, from various considerations. In construing the statute of ways, the decisions have never recognized any distinction between walking from place to place in town, and walking or riding from town to town. But such a distinction is apparent in c. 124 as will be seen by comparing sections 20 and 21. Thus § 21 forbids any innholder or victualer, on the Lord’s day, to suffer “any persons, except travelers, strangers or lodgers, to abide in his house,” &c. If, however, every person who walks in the street from place to place in the town “travels,” within § 20, he would also thereby become a “traveler” within § 21 and the phrase “except travelers” would become a nullity as all would be “travelers” who happened into the inn. That such was not the original intention of the legislature is rendered still more apparent by regarding the language of the statute of 1821, c. 9, § 3, [39] (from which § 21 of c. 124 was derived,) which forbade innholders and others there enumerated to “entertain any of the inhabitants of the respective towns where they dwelt, or others not being travelers,” &c. This language would seem to make it certain that the citizens of a town, when visiting an inn and certain other places of entertainment kept therein, were not considered “travelers.” Moreover, the numerous provincial statutes on this subject enacted in Massachusetts, from time to time from its earliest times down to 1791, not only contained provisions prohibiting traveling strictly so called, but they also, by distinct and variously expressed clauses, forbade under specific penalties, “unnecessary walking in the streets, highways, fields,” &c. But this last and all similar provisions were omitted from the Mass. Stat. of 1791 and all succeeding statutes in that commonwealth. And “it is reasonable to infer that the provisions against mere unnecessary walking in the streets were intentionally omitted by the legislature, and for the reason that they were an unwise and arbitrary interference with the comfort and conduct of individuals.” Hamilton v. Boston, 14 Allen, p. 481. Before the separation, the laws of Massachusetts were our laws. After becoming a state, our earliest statute providing for the “due observation of the Lord’s day” (Stat. 1821, c. 9,) was substantially a transcript of that of 1791, e. 58, except as to its penalties; and section one provided, “No traveler, drover, wagoner, teamster, or any of their servants, shall travel on the Lord’s day, except from necessity or charity.” The only substantial difference between that and the present statute, is a substitution of “whoever” for the different classes specified in the other. The effect of the change simply enlarges the number of persons to whom the statute may apply, but it in nowise changes the act by which they may incur the penalty, the word travel remaining. Our conclnsion is that a young lady, who, on the Lord’s day, walks one-fourth of a mile to her aunt’s house and calls there and invites her cousin to walk with her, and they then proceed to walk three-fourths of a mile simply for exercise in the open air, is not thereby traveling in violation of B. S., c. 124, § 20. This decision has the authority of the court in Massachusetts [40] after a complete review and thorough analysis of the statutes. Hamilton v. Boston, 14 Allen, 475. If the testimony is true, the verdict is not against the weight of evidence or against law. Motion and exceptions overruled. Judgment on the verdict. Appleton, C. J., Walton, Barrows and Peters, JJ., concurred.