White v. Lang

Morton, J. We must assume, for the purposes of this case, that the plaintiff was unlawfully travelling on the Lord’s day. But this fact does not defeat his right to recover, unless his unlawful act was a contributory cause of the injury he sustained. McGrath v. Merwin, 112 Mass. 467. Marble v. Ross, 124 Mass. 44, and cases cited. It has been held in this Commonwealth that if a person, who is unlawfully travelling on the Lord’s day, is injured by a defect in the highway, or by a collision with the vehicle of another traveller, he cannot recover for the injury. This is upon the ground that his illegal act aids in producing the injury, or, in other words, is a contributory cause. Lyons v. Desotelle, 124 Mass. 387. Connolly v. Boston, 117 Mass. 64. On the other hand, it has been held in several cases that if a person, who is at the time acting in violation of law, receives an injury caused by the wrongful or negligent act of another, he may recover therefor if his own illegal act was merely a condition, and not a contributory cause of the injury. Marble v. Ross, ubi supra. Steele v. Burkhardt, 104 Mass. 59. Kearns v. Sow-den, 104 Mass. 63 note. Spofford v. Harlow, 3 Allen, 176. We are of opinion that the case at bar falls within the last-named class. If a man while travelling is injured by an assault, the act of travelling cannot in any just sense be said to be a cause of the injury. It is true that, if he were not travel-ling, he would not have received the injury, but the act of travelling is a condition and not a contributory cause of the injury. The plaintiff when travelling was assaulted and injured by a dog for whose acts the defendant is responsible. Gen. Sts. c. 88, § 59. LeForest v. Tolman, 117 Mass. 109. Sherman v. Favour 1 Allen, 191. The act of travelling had no tendency to produce the assault or the consequent injury; and therefore, though the plaintiff was travelling in violation of law, it does not defeat his right of recovery. Exceptions overruled.