That the defendant is under a legal obligation to use all ordinary and reasonable means and appliances to guard against the breaking away of the embankment of its canal, and, failing to do so, if a break therein occur which results in an injury to the person or property of others (the latter being free from contributory negligence), that the defendant is liable to respond in damages for such injury, is too clear for argument.
Had the injury of which the plaintiff complains occurred on any day other than the Sabbath, there would be no doubt that the learned circuit judge gave the law correctly to the jury. In a very clear and concise manner he submitted to them the questions, whether the defendant was negligent in permitting too much water to flow into the canal from the Wisconsin river, or in not discharging sufficient water through the mill and lower lock gates or valves, by means whereof the embankment of the canal was overflowed and broken ; and whether the persons in charge of the tug and barge were guilty of negligence in passing the same through the lower lock into the canal, which contributed to cause the break in the canal, and the resulting injury. There was sufficient testimony tending to show such negligence on the part of the defendant, to authorize the court to submit the former question to the jury; and a verdict for the plaintiff is, in effect, a finding that the defendant was negligent in that behalf, and that the plaintiff was not guilty of any negligence which contributed to the injury.
It may as well be remarked here as elsewhere, that the ver-*146diet, which acquits the plaintiff or his agents of all negligence, renders quite immaterial the testimony offered by the defendant and rejected by the court, concerning the amount of damages which the defendant suffered by reason of the break in the embankment of the canal. The defendant alleged in its answer that such break was caused by the negligence of the persons in charge of the tug and barge, and demanded damages therefor; and this testimony was offered in support of, such counterclaim. The defendant was permitted to show the conduct of those persons while passing the lock and navigating the canal, and all of the facts in any manner connected with the break, and was only prevented from showing the amount of damages it suffered thereby. It having become a verity in the case that the plaintiff was free from contributory negligence, he is not liable for any such damages, and the amount thereof is of no importance.
It should be observed, however, that no good reason is perceived why the counterclaim is not a valid one. If it does not arise out of the transaction set forth in the complaint, it certainly is connected with the subject of the action. R. S., ch. 125, sec. 11, subd. 1. Were the plaintiff justly chargeable with negligence which produced or caused the break in the embankment (the defendant being free from negligence which contributed thereto), we think that the defendant might lawfully, recover damages therefor in this action, under and by virtue of such counterclaim. In other words, we think that the defendant is entitled to the same relief in this action, under the pleadings, that it would have been entitled to had it brought an action against the plaintiff for the cause stated in the counterclaim.
Thesé preliminary observations bring us to the consideration of the principal question in the case, and the only one remaining to be determined, which is, whether the use of the lock and canal by the plaintiff on Sunday was negligence on his part which defeats the action. What has been said respecting the rejection of testimony has no reference to this question; for if *147such user on Sunday was negligence, the rejected testimony concerning the amount of the defendant’s damages should have been received under the counterclaim.
' The following instruction was asked on behalf of the defendant, and refused: “ If the attempt was made by plaintiff, or the owners of the tug, or his agents or servants, to pass the lock and canal on Sunday without the permission and assistance of the lock-tender, it was an act of negligence, because of which the plaintiff cannot recover.” The court held that the mere fact that the plaintiff or his agents was or were using the lock and canal on Sunday was not negligence.
An attempt was made on the trial to show the existence of a regulation of the defendant prohibiting boats from passing through locks on Sunday without the consent in writing of certain agents of the defendant. It appeared that this regulation was printed on the back of receipts or clearances, one or more of which, the testimony tended to show, had been issued to the captain of the tug. But it does not appear that either he or the plaintiff had actual knowledge of the regulation, or that the same was ever adopted by the board of directors of the defendant. The regulation is as follows : “ No boat will be allowed to pass the lock on Sunday without a written permit from the superintendent or his assistant; and this permit will not be granted, unless in cases of actual necessity.” It is claimed that this regulation was made by the superintendent, and that he had authority, under the general powers of such agents, to make it, without the concurrence of the board of directors. But we are of the .opinion that neither the superintendent nor board of directors has the power to make and enforce such a regulation. The canal of the defendant is a public highway, which all persons, upon complying with all lawful requirements, may navigate and use at their pleasure on all days except Sunday, and on Sunday in cases of necessity. This regulation makes the superintendent or his assistant, and him alone, the judge of *148tbe existence of such necessity, and prohibits the use of the locks on Sunday until the person who desires to pass his boat through one of them hunts up the superintendent or his assistant (who may be a hundred miles away), satisfies him that the case is one of actual necessity, and obtains a written permit from him to pass his boat through the locks. A boat might arrive at the lower lock near Portage Oity on Sunday, with a cargo for that city, at a time when the Fox river was rapidly falling; and it might be that unless she were allowed to pass the lock at .once, so as to discharge her cargo and return immediately, the river would become too low for her to proceed on her return trip. This would be a case of most urgent necessity; and yet, under the regulation we are considering, unless the superintendent or his assistant should be accessible, or, if there present, if he should adjudge that the case was not one of necessity, and hence refuse the permit, the boat must tie up until the-next day, and the parties injured thereby would be remediless, however serious the consequences of the delay might be to them. The regulation is clearly unreasonable, and therefore void. If a person navigates the canal on Sunday, he does so at his peril. If it be a case of actual necessity, within the statute, he is blameless; otherwise, he is liable to suffer the consequences of violating the statute. ' -
The foregoing views relative to the invalidity of the regulation are sustained by the supreme court of Illinois, in the case of Tyler v. The Western Union Telegraph Co., not yet reported, but which may be found in the Albany Law Journal, vol. 8, p. 181. The action was to recover damages for a mistake in transmitting an unrepeated message. The telegraph company had adopted regulations restricting its liability for such mistakes unless the message was insured, and- providing that no person except the superintendent of the company could make a contract for such insurance. The court held the regulations unreasonable, inoperative and void.
*149In the present case, the court held that the existence of the regulation under consideration was not proved. We think that the ruling was correct.
The proposed instruction which the court refused to give is predicated upon the supposed validity of the regulation, and the same being invalid, the instruction was properly refused. Besides, while there was no express permission given to the captain of the' tug to. lock’his boat and the barge through on Sunday, neither was he forbidden to do so. The undisputed testimony is, that the defendant’s lock-tender at Portage City told the captain of the tug, on his trip next preceding that when the break occurred, if he, the lock-tender, was not there when the captain made his next trip, to lock through himself. The usual signals were given from the tug, the lock-tender was not there, and the captain passed the tug and barge through the lock and into the canal. The jury have found that he did so in a proper manner, and without negligence. Hence it appears that the captain of the tug (who, for the purposes of this case, is regarded as the agent of the plaintiff) had the permission of the lock-tender to pass the lock without the presence and assistance of the latter. This is another reason why the proposed instruction was propérly refused.
If, as I have attempted to show, the regulation in question is invalid, and the captain of the tug had authority, under the circumstances, to pass the boats through the lock, and did so with due care, the only ground upon which contributory negligence can be imputed to the plaintiff, is the mere fact that the boats were thus passed through the lock in violation of the statute which prohibits the doing of unnecessary work on Sunday ; and hence the plaintiff is in the same position as was the plaintiff in Sutton v. The Town of Wauwatosa, 29 Wis., 21. It was "there held that in an action brought against a town to recover for injuries caused by a defect in the highway, the mere fact that the plaintiff was unlawfully traveling upon such highway on Sunday, at the time of the injury, is not, of itself, con-*150tributary negligence. That case is decisive of the question to be determined here. While it does not demonstrate that the plaintiff in the present case had a legal right to navigate the canal with his boats on Sunday, it asserts the principle that, if he did so, being otherwise free from blame, and was injured because of the negligence of the defendant, such violation of the statute is not contributory negligence on his part, and does not interfere with his right to recover. Or, stated in another form, the same state of facts which would entitle the plaintiff to recover, had the injury happened on any day other than Sunday, will entitle him to recover in this action, notwithstanding the injury was received on Sunday, and when he was unlawfully navigating the canal with his boats. The circuit judge substantially so ruled, and we think that he ruled correctly.
We are confirmed in the opinion that the case of Sutton v. The Town of Wauwatosa was correctly decided, by the fact that the supreme judicial court of Massachusetts has, in three late cases, substantially indorsed the views expressed by the chief justice in his opinion in the former case, in opposition to the older decisions of that court, which are referred to and commented upon in that opinion. In Steele v. Burkhardt, 104 Mass., 59, it was held that “ one who places his horse and wagon in a street in a city, transversely to the course of the street, while loading articles which a city ordinance permits to be loaded only in vehicles placed lengthwise and as near as possible to the sidewalk, is not restrained by the mere fact of thus violating the ordinance, from maintaining an action against one who injures' the horse by negligently driving another wagon against it, when by exercising more care he might have avoided doing so.” Chapman, C. J., concludes his opinion in that case with the following language: “It is true, generally, that, while no person can maintain an action to which he must trace his title through his own breach of the law, yet the fact that he is breaking the law does not leave him remediless for *151injuries, willfully or carelessly clone to him, and to which his own conduct has not contributed.” To the same effect is the case of Kearns v. Sowden, reported in a note to Steele v. Burkhardt, on page 68.
In Hall v. Corcoran, 107 Mass., 251, it was held that a person who hires a horse of its owner to drive to a particular place, and drives it to another place, is liable in tort for the conversion of the horse, although the contract for hiring was made on the Lord’s day, and, as both parties knew, for pleasure only, and therefore illegal and void. This case expressly overrules that of Gregg v. Wyman, 4 Cush., 822, which held the opposite doctrine.
No mention was made in the oral argument of the counsel for the defendant, and we find none in their written arguments since submitted, to the objection, taken at the trial, that the plaintiff can not maintain an action in his own name for the damages occasioned by the detention of the tug. The objection not being pressed, we conclude that it is waived, in order that the whole matter may be disposed of in this action. Hence we have not considered it.
By the Court. — The judgment of the circuit court is affirmed.