Statement of the Case.

the Lord's Day except for necessity or charity shall be punished by a fine not exceeding ten dollars is a bar to recovery in an action against a railroad company by a person injured through the negligence of its servants while travelling on its railroad on Sunday, not for necessity or charity; and (3) that the act of the Massachusetts legislature of May 15, 1877, that this prohibition against travelling on the Lord's Day shall not constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by the person so travelling, does not apply to a case happening before the passage of the act; Held, that these adjudications are sustained by a long line of numerous decisions, which establish a local rule of law within the State of Massachusetts, binding upon this court, though not meeting its approval.

THIS action was brought to recover damages for personal injuries inflicted upon the plaintiff by reason of the joint tort of the defendants, while he was travelling in the State of Massachusetts, as a passenger on a train operated by one of them. The defendants' plea was a general denial, and a further allegation "that if the plaintiff was travelling, as alleged by him, and while travelling was injured, he was travelling on a Sunday or Lord's Day, and not from necessity or charity, and in violation of said law of said Commonwealth of Massachusetts, and that if he suffered any injury it arose from and happened in consequence of his violation of said law."

There was a verdict for defendants, under instructions from the court, and a judgment on the verdict, to review which this writ of error was sued out.

Before the commencement of this action, the plaintiff had sued the defendants on the same cause of action in a state court of Massachusetts. He obtained a judgment against them in the court below, which was reversed by the Supreme Judicial Court of the Commonwealth, Bucher v. Fitchburg Railroad, 131 Mass. 156, and the case remanded for a new trial. The plaintiff thereupon became nonsuit, and commenced this action in the Circuit Court of the United States. The case as presented in this court, is shown in the bill of exceptions, allowed by the court below, as follows:

"This was an action of tort for damages alleged by plaintiff to have been sustained by him through the negligence of the defendants while he was a passenger in the cars of said Fitch

Statement of the Case.

burg Railroad Company. The writ, declaration, and all pleadings on file are referred to as a part of this bill of exceptions. "Defendants are both common carriers of freight and passengers, the Fitchburg Railroad Company running trains from North Adams, Mass., to Boston, and the Cheshire Railroad Company from Fitchburg, Mass., to Keene, N. H., and thence to Bellows Falls, Vt., both companies running on the same track from Fitchburg to Ashburnham, Mass. At the trial before the jury the plaintiff, a resident and citizen of Philadelphia, Penn., testified that at the time of the accident he was the managing agent of a fire insurance company, attending to their business in New England; that on Saturday, August 5, 1876, being in Rutland, Vt., he took passage and started on the early morning railroad train of the Bennington & Rutland railroad in course and en route for Boston, said train connecting with said Fitchburg railroad train at North Adams; that the train was due and he expected and intended to reach Boston at 10.30 that evening; that this train reached North Bennington, Vt., a half hour too late to make connections for Boston with the Troy & Boston railroad train which connected with the state railroad run by the Fitchburg railroad at North Adams; that he then inquired of the ticket agent at that station what chance he had to get to Boston that night; that the ticket agent glanced along the time-table on the wall and said: "You can get to Boston at 7.22 in the morning by taking the express freight at North Adams," and advised him to drive right over to Hoosac, a distance of about eight miles; that plaintiff took a carriage and did so, and there took a mixed train, which carried him to North Adams, where he arrived about eleven o'clock that evening, and was there told by the conductor that the express freight started in about twenty minutes, but he found that this train also was delayed; he waited around the station until the express freight backed up and then got aboard, going into the caboose car with the consent of the conductor, starting from North Adams at about one or two o'clock Sunday morning; that there were other passengers in the car; that he had a ticket, which he had bought the previous week, entitling him to be carried over the

Statement of the Case.

Fitchburg Railroad Company's line from Miller's Falls to Boston, and expected and was ready to pay his fare from North Adams to that place, the office at North Adams being closed so that he could not buy a ticket; that the train reached Ashburnham at about eight o'clock in the morning, and about a half hour afterward, whilst rounding a sharp curve about six miles from Fitchburg, collided with a train operated by the said Cheshire Railroad Company which was standing still upon the said track used in common by both defendants from Ashburnham to Fitchburg; that the car in which plaintiff was riding was telescoped, and he was seriously injured in his side and about his head, having his arm and the bones of his neck fractured, occasioning a permanent disability, for which he claimed damages to the amount of ten thousand (10,000) dollars."

The plaintiff also testified, in answer to questions put to him by counsel on direct and cross-examination, as follows, viz: "(By MR. CLARK, pl'ff's counsel :) Q. When you came down to Bennington and missed the Boston train why did you not stay over there? A. I wanted to reach Boston for a special reason. Q. What was that? A. I had heard from my sister, who was in Minnesota, stopping with an uncle, where I sent her for her health a year previous to that. I had a letter from her that she was very ill, and expressed in her letter that she preferred to be brought home to die. She had been feeble for a number of years. Q. Were you supporting her at this time? A. I was; yes. Had you made any reply to the letter she sent you? A. I wrote her back that if she could prevail on my cousin to bring her as far as Chicago I would meet her there and bring her the rest of the way; or if he preferred to go clear through to Philadelphia I would be very glad, because my business was such that it was disadvantageous to leave my field any longer than it was necessary. Q. Had you informed your sister where she could reach you by mail? A. I had, and when. Q. Where was it? A. That I would be in Boston on the first Saturday of August, and whatever was her wish I would carry out either go to Chicago or through to St. Paul if it were necessary. Q. That is, would

Q.

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you go through to St. Paul after leaving Rutland in the morning? Do you mean you would have gone there if this letter had not stopped you in Boston? A. It is equivalent to that, yes. Q. What time did you expect this letter from your sister to reach Boston - to reach you in Boston? A. I expected it to be there on the Saturday I was going. Q. Then, as I understand, if this man could not accompany her East you were going on after her and bring her yourself? A. I would have gone on Saturday night. Q. Was that letter brought to you at any time? A. It came to me whilst I lay at the Roolstone House, Fitchburg, on the Tuesday after the accident. Q. Brought up by any person? A. By Mr. Merrifield, the general agent of my company residing in Boston.

"(By MR. SOHIER, defendants' counsel:) Q. You say you expected a letter from her in Boston? A. Yes, sir. Q. What is the date of the letter you wrote her? A. It may have been about the 15th of the month or it may have been later than that date. I am rather inclined to the opinion that it was the 20th of the month. Q. The month of July? A. The 20th of July. Q. You say you wrote your sister. You have been examined before in this case in the Massachusetts Supreme Court? A. Yes, sir. Q. Did not you say before the letter was received about the 15th of July? A. Yes, sir; and I say so now; about the 15th of July, but I think the probabilities are that it was the 20th or 21st, the reasonable probabilities. Q. When did you receive the letter from her? A. About that time. Q. A short time before you answered it? A. Yes, sir. You answered it the 15th? A. 15th to the 20th. Q. Have you had any occasion or reason why you should change any part of your previous testimony? A. No, sir; I don't, except to make the correction in that one important particular. Q. What is that? A. That I expected that letter that Saturday in Boston, at the office of the general agent. I as fully expected it as yesterday I expected to be on the witness stand to-day. Q. You expected to find a letter from your sister, then? What made you expect to find it then more than any other Saturday? A. Because I had notified her where to address me, and the time. Q. When did you

Q.

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give her that notice? A. I gave her that notice perhaps as late as July 22d. Q. Is the letter you now allude to the same letter which you say was about the 15th? A. It is the same letter, for I think it was likely the 20th or 22d. Q. Where were you when you wrote that letter? A. I think that letter was written from Concord, to the best of my recollection — Concord, N. H. To the best of my recollection, I was at Concord the 21st, 22d, 23d, and 24th of July. Q. Are you testifying from memoranda you made? A. No; except in trying to rehearse my field of operations to see where I was and ascertain as nearly as I can where I received the letter from my sister.

"(By MR. CLARK:) Q. Something has been said about your testifying, at the last trial of the case before the Massachusetts Supreme Court, that you wrote the letter to your sister about the 15th of July. When was the time of writing that letter first called to your attention? A. When I was asked the question on the witness stand before said court. Q. When you testified at the last trial before said court? A. Yes, sir. Q. Was that the first time you had ever had your attention called to it? A. That was the first time. Q. You then stated about the 15th of July? A. Yes, sir. Q. How long after the accident was it when you testified-how many years? A. Nearly three years. Q. Had your attention ever been called in any way to the date of that letter until you were testifying? A. No; it had not. Q. Well, since then have you refreshed your recollection in any way as to the time. when you wrote it? A. The best I could within the past few days. Q. How? A. By thinking over my routes of operations when out in the field of labor taking care of the interests of my company, where I was likely to have been on such a week and at such a week, and when I was likely to have received this letter and when I was likely to have answered it. Q. On what day did you expect this letter to arrive in Boston? A. Which letter do you now refer to? Q. The answer which was to come back from your sister. Did you expect that the answer from your sister would arrive before the 5th day of August, upon Saturday? A. I directed her to write me at Bos