Argument for Plaintiff in Error.

The presiding juage thereupon directed the jury to return a verdict for defendants, and plaintiff then duly excepted to all said rulings and refusals to rule, directions, and doings of the presiding judge, and said exceptions were duly allowed. The jury returned a verdict for defendants, as directed by the presiding judge, as above stated.

The statute of Massachusetts referred to in the defendants' plea, as in force at that time, is to be found in the General Statutes of the State, c. 84, § 2, and is as follows: "Whoever travels on the Lord's day, except for necessity or charity, shall be punished by a fine not exceeding ten dollars."

After the accident happened, and before the suit in the state court was brought, the legislature of Massachusetts enacted the following statute:

"The provisions of § 2 of c. 84, Gen. St., prohibiting 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 a person so travelling."

This last-named statute was held by the state court not to be retroactive, and not to affect this case.

Mr. A. A. Ranney for plaintiff in error.

I. The court below erred in regarding this as a question of local law, in which the Federal court was concluded by the decision of the state courts.

The court below followed the doctrine of law as held by the Supreme Court of the State of Massachusetts, which this court will find stated in Stanton v. Metropolitan Railroad, 14 Allen, 485, thus: "Being engaged in a violation of law, without which he would not have received the injury sued for, the plaintiff cannot obtain redress in a court of justice." He seems, however, to have gone further than this, and treated the ruling of the state court in Bucher v. Fitchburg Railroad Co., 131 Mass. 156, — that the evidence reported therein was not sufficient to warrant a verdict for the plaintiff, and that a new trial must be had before a jury, leave for which was granted, a conclusive adjudication on the issue of fact presented again

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Argument for Plaintiff in Error.

to a jury in the Circuit Court, rather than as a legal authority only. The adjudication in the state court was not pleaded in bar, and would not have availed as such, if it had been, as there was only a voluntary nonsuit in the case.

The only effect which can properly be given to the decisions of the state court in this case is as an authority in matter of law, except that possibly the construction put upon the statute of May 15, 1877, as to its not being retroactive, may be binding on this court; and we respectfully submit that the court below erred in this respect. He disregarded a general principle and rule of law, as adjudicated in the Federal courts, and by other high authorities in other States, and followed the doctrine as held in the State of Massachusetts, treating the same as binding upon him, although his own opinion might be otherwise.

In the case of Sawyer v. Oakman, 1 Lowell, 134, affirmed 7 Blatchford, 290, the court held itself bound by the doctrine of this court as against the decisions of the courts of Massachusetts. The court says: "Now, to the extent of holding that work done in contravention of the statute is illegal, it may be that the local law should govern, but the statute itself is silent concerning the legal consequences of doing such an act, excepting to the extent of the penalty directly imposed. The effect which it may have on the wrong-doer's standing, as regards third persons, is no part of the construction of the statute, but the application of a general principle of law."

It is also held, in Hough v. Railway Co., 100 U. S. 214, that where a case depends upon principles of general law, and not upon statute regulations, this court is not bound by the decisions of the state courts. That was a railroad case of tort. See also Myrick v. Michigan Cent. Railroad, 107 U. S. 102; Railroad Co. v. National Bank, 102 U. S. 14; Chicago City v. Robbins, 2 Black, 418; Oates v. National Bank, 100 U. S. 239; Branch v. Macon & Brunswick Railroad, 2 Woods, 385.

In Burgess v. Seligman, 107 U. S. 20, 34, this court says: "As the very object of giving to national courts jurisdiction to administer the laws of the States in controversies between citizens of different States, was to institute independent tribu

Argument for Plaintiff in Error.

nals, which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudication."

It may be regarded as an established rule in this court that, where private rights are to be determined by the application of common-law rules alone, the Federal courts are not bound by the decisions of the state courts.

There is a very good reason why this court should have a doctrine of its own in cases like the one at bar.

Lines of railway are long and continuous, extending through different States, and citizens of different States travel over them. There ought to be a uniform rule of law to be administered in Federal courts on such a subject.

If right in this position, we then submit that the doctrine laid down by this court in Phil. Wilmington &c. Railroad Co. v. Towboat Co., 23 How. 209, and followed by Lowell, J., in case of Sawyer v. Oakman, 1 Lowell, 134 (approved by Woodruff, J.), is the only sensible and sound view to take of the law.

We cite also, in support of this contention, the following cases, namely: Sutton v. Wauwatosa, 29 Wis. 21; Schmid v. Humphrey, 48 Iowa, 652; Carroll v. Staten Island Railroad, 58 N. Y. 126; Mohney v. Cook, 26 Penn. St. 342; S. C. 67 Am. Dec. 419; Merritt v. Earle, 29 N. Y. 115; S. C. 86 Am. Dec. 292; Johnson v. Irasburgh, 47 Vt. 28; Bigelow on Torts, 309; 2 Thompson on Negligence, 1094; Strickler v. Hough, 1 Pittsb. (Penn.) 237; Moulton v. Sanford, 51 Maine, 127; Baker v. Portland, 58 Maine, 199; Norris v. Litchfield, 35 N. H. 271; S. C. 69 Am. Dec. 546; Corey v. Bath, 35 N. H. 530; Landers v. Staten Island Railroad, 13 Abb. Pr. (N. S.) 339; Wharton on Neg., § 321; Cooley on Torts, 156, 157.

The trouble with the doctrine, as held by the Supreme Court of Massachusetts, is this: It has applied its doctrine to cases of highway and railway accidents alike, disregarding the distinction made by the Supreme Court of Vermont in Johnson v. Irasburgh, 47 Vt. 28. It makes that an efficient cause of the injury which is not such. It treats travelling on Sunday as

Argument for Plaintiff in Error.

contributing necessarily to the result, when it is not the natural or usual result of travelling on Sunday that damages should follow. It is a species of judicial outlawry; it ignores the analogies of the law and the principles of humanity; it impinges upon a well-settled rule of general law, which the same court has itself recognized and enforced in other cases, to wit: Welch v. Wesson, 6 Gray, 505; White v. Lang, 128 Mass. 598; Steele v. Burkhardt, 104 Mass. 59.

The doctrine of the court of Massachusetts is generally regarded as strained, unwarranted, and unjust: Wallace v. Navigation Co., 134 Mass. 65, 95; Commonwealth v. Louisville & Nashville Railroad, 80 Kentucky, 291; Platz v. Cohoes, 89 N. Y. 219; Baldwin v. Barney, 12 R. I. 392; Bayley v. New York &c. 3 Hill, (N. Y.), 531; Kerwhaker v. Railroad, 3 Ohio St. 172; S. C. 62 Am. Dec. 246; Opsahl v. Judd, 30 Minnesota, 126; Jacobus v. St. Paul &c. Railway, 20 Minnesota, 125; Wood v. Erie Railway, 72 N. Y. 196.

The mere fact that the plaintiff on the one hand, or the defendant on the other, was engaged in violating the law in a given particular at the time of the happening of the accident will not bar the right of action of the former, nor make the latter liable to pay damages, unless such violation was an efficient cause of the injury.

We insert copious extracts from the opinions of the court in some of the cases cited, showing that this general rule of tort governs the case at bar.

Mr. Justice Grier, in Philadelphia, Wilmington &c. Railroad v. Towboat Co., 23 How. at page 207, says: "The law relating to the observance of Sunday defines a duty of a citizen to the State, and to the State only. For a breach of that duty, he is liable to the fine or penalty imposed by the statute and nothing more. Courts of justice have no power to add to this penalty the loss of a ship by the tortious conduct of another, against whom the owner has committed no offence."

The court say, in Carroll v. Staten Island Railroad Co., 58 N. Y. 126: "The defence is purely extraneous. The negligence of the defendant was as wrongful on Sunday as on any other day, and was as likely to be followed by injurious or fatal

Argument for Plaintiff in Error.

consequences. The plaintiff's unlawful act did not in any sense contribute to the explosion. . . . To hold the carrier exempt from liability because the plaintiff was violating the Sunday statute would be creating a species of judicial outlawry, to shield a wrong-doer from a just responsibility for his wrongful act." p. 136.

Dixon, C. J., in Sutton v. Wauwatosa, 29 Wis. 21, demonstrates that the violation of the law is an independent and disconnected act, and not a concurring or contributing cause within the rule of common law, and concludes: "Connection, therefore, merely in point of time, between the unlawful act or fault of the plaintiff, and the wrong or omission of defendant, the same being in other respects disconnected and independent acts or events, does not suffice to establish contributory negligence, or to defeat the action on that ground. observed in Mohney v. Cook, such connection, if looked upon as in any sense a cause, whether sacred and mysterious or otherwise, clearly falls under the rule- Causa proxima non remota spectatur." p. 29.

As

In Baker v. Portland, 58 Maine, 199, the court say: "The fact that a party plaintiff in an action of this description was at the time of the injury passing another wayfarer on the wrong side of the street, or without giving him half of the road, or that he was travelling on runners without bells, in contravention of the statute (see Moulton v. Sanford, 51 Maine, 134, by Appleton, C. J.), or that he was smoking a cigar in the streets, in violation of a municipal ordinance, while it might subject the offender to a penalty, will not excuse the town for a neglect to make its ways safe and convenient for travellers, if the commission of the plaintiff's offence did not in any degree contribute to produce the injury of which he complains." p. 205.

In Schmid v. Humphrey, 48 Iowa, 652, the court say: "The fact that the plaintiff was at the place at the time he was injured did not directly contribute thereto. As well might it be said, if he had never come to Iowa, or been born, he would not have been injured, and that, therefore, by reason of such facts, he contributed to the injury." p. 654.

In Johnson v. Irasburgh, 47 Vt. 28, the court agree with