
    George Nagle v. William Brown.
    1. In. this state, it is not unlawful for a person, on the Sabbath day, to ride or drive, for pleasure merely, upon public highways.
    3. A person owning lands through which a public road passes, who gives his assent to the cutting down of a tree standing thereon within a few feet of the traveled track, is guilty of obstructing the highway, if the tree falls within the road and is suffered to remain therein to the hindrance or inconvenience of travelers.
    8. A condition attached to such assent that the tree should not be felled into the road, does not relieve the owner from liability.
    Error to the District Court of Lorain County.
    The original action was brought in 1876, by Brown against Nagle and others, in the court of common pleas of Lorain county, for injuries to the plaintiff, his wife, and team of horses, by reason of obstructions in a public highway. The petition averred that on or about October 15, 1874, the defendant “wrongfully caused to be cut, felled and placed in said highway, a large tree, brush and rubbish, across and in said highway, whereby the plaintiff, lawfully passing in and along said highway in a carriage in which were himself and wife and two children, drawn by a span of horses, on or about the 14th day of March, A. D. 1876, was then and there, by reason of said tree, brush and rubbish,” without any fault on his part, greatly injured, &c.
    The defendant, Nagle, by his answer, admitted the existence of the public highway, the obstructions thereon, and the injury of the plaintiff, but denied each and every other allegation in the petition. He also alleged that the plaintiff was injured while driving for pleasure upon the Sabbath day, and that his own carelessness contributed to the injury.
    A verdict having been rendered for the plaintiff, the defendant, Nagle, moved for a new trial on the ground that the verdict was contrary to the evidence. The motion was overruled, and all the testimony was embodied in a bill of exceptions. Judgment was rendered on the verdict.
    The testimony tended to prove that the obstructions in the road were upon the lands of the defendant, where they were suffered to remain from the fall of 1874 to the time of the injury. The obstructions were placed in the road under the following circumstances, as testified to by the defendant, Nagle, himself:
    “ I remember the night the tree was cut; Gable came to my house; I was in bed; Gable said they had a coon on the tree, and a young dog, and wanted to see the dog catch the coon; I said they night cut the tree if they would not cut it in the field or across the road; I went out to the tree; was there when it fell; I remained about twenty rods away, so the tree would not hit me; the tree stood two feet from the fence; there was meadow field there; I had nothing to do with chopping the tree; simply looked on to see it was not fell in the meadow or road; I did nothing about getting it out of the road; told them to get it out of the road; the top was piled up in a corner of the fence.”
    On cross-examination witness said : “ I was there when the tree fell; I cannot say that they did anything toward removing the tree after that night; they cut out a passage way of twelve feet that night; the log lay in the comer of the fence; Forthover and I took the tree away Tuesday after accident; Gable said if I would give him a log he would take the tree away; no one but Gable came to my house : I first saw Bates and Osterman at the tree; I did not see what they were doing; they were at work at the tree pounding it; they were chopping the tree; I did not object to their falling it in the meadow; I do not remember that anything was said there; I said they must not fall it in the road ; if did, must clear it away; 1 heard nothing about the little tree.”
    The judgment of the court of common pleas having been affirmed by the district court, it is now sought to reverse the judgment below, upon the ground chiefly, that the verdict was contrary to the weight of the evidence.
    
      George P. Metcalf and Johnson <& McLean, for plaintiff in error.
    
      G. W. Johnston, for defendant in error,
   McIlvaine, J.

It is not unlawful, in this State, to travel upon public highways, for pleasure merely, upon the Sabbath day. The due and legal observance of the Sabbath day is regulated by statute. Act of March 30, 1864, Swan & Saylor, 289. In addition to common labor (works of necessity and charity only excepted), the statute makes it unlawful for any person of fourteen years or upward to be found on the first day of the week, commonly called Sunday, sporting, rioting, quarreling, hunting, fishing or shooting.” Beyond these inhibitions the observance of the day is left to the conscience and religious convictions of the citizen; and in our judgment the innocent and healthfirl exercise of riding or driving is not within the meaning of the terms of inhibition. The only possible doubt is as to the meaning of the word sporting;” but, whatever may be included within the meaning of that word, we do not believe that the legislature intended to inhibit the quiet, peaceful and invigorating exercise of either walking or riding upon the Sabbath day, although no urgent necessity or charity may prompt the exercise.

By the act of April 15, 1857 (S. & S. 880), it is declared that “ the obstructing or incumbering by fences, buildings, structures or otherwise, -any of the public highways, or street, or alleys of any city or village, shall be deemed nuisances,” and “Any person injured in his health, comfort, property,-or the enjoyment of his estate, by any nuisance, may maintain against the party guilty of the same, an action for the recovery of damages, as in other cases.” The obstruction of the highway mentioned in the original petition was clearly a nuisance within the meaning of this act, and the only question made is, was the plaintiff in error “ guilty of the same.” Upon the testimony before them, the jury were justified in finding that the part of the highway obstructed was upon the premises of the plaintiff in error; that the tree which made the obstruction was his property; that he consented that it should be cut down, and that it would not have been felled but for his consent. He thus became as guilty of the nuisance as if he, himself, had felled the tree into the road. The condition attached to his consent, that the tree should not be felled into the road, did Dot exonerate him from blame. It was his duty to the public to see that the condition was performed. If those persons to whom he gave authority to cut the tree did not remove it from the road, it was his duty to remove it.

We also think that the jury were justified in finding that the plaintiff below did not contribute to his injury by his own negligence.

Judgment affirmed.  