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from these facts, when Submitted to them, negligence ought to be inferred. The relewancy of evidence, and whether any exists which tends to prove, or is capable of proving, negligence, is for the court.” We can see no possible ground on which the power and duty of the court to grant a nonsuit can be distinguished and denied where plaintiff proves the negligence of the defendant as a proximate cause and at the same time makes good the defense of contributory negligence by introducing evidence which admits of no other inference than that his own negligence contributed to the injury as a proximate cause. It is true in Carter v. Railroad Co., 19 S. C. 24, 45 Am. Rep. 754, the circuit court was held to be without power to grant a nonsuit on proof by plaintiff of contributory negligence, and the authority of this case is recognized in Darwin v. Irailroad Co., 23 S. C. 537, 55 Am. Rep. 32: Petrie v. Railroad Co., 29 S. C. 322, 7 S. E. 515; Carter v. Oil Co., 34 S. C. 215, 13 S. E. 419, 27 Am. St. Rep. 815; Whaley v. Bartlett, 42 S. C. 468, 20 S. E. 745; Hankinson v. Railroad Co., 41 S. C. 19, 19 S. E. 206. A careful review of these cases suggests that the leading idea in the mind of the court was that the court could not under the Constitution hold a particular act or omission, such for instance as a failure to look and listen, to be under all circumstances proof of contributory negligence as a matter of law. Be that as it may, in the subsequent case of Jarrell v. Railroad Co., 58 S. C. 495, 36 S. E. 912, the court states the rule, applying the well-recognized general principles to contributory negligence: “We may also say that, while contributory negligence is ordinarily a matter of defense, yet if the complaint shows contributory negligence by plaintiff, that would render the complaint demurrable for insufficiency, since it contained allegations that would defeat the cause of action alleged, or prevent a recovery thereon.” This case has been cited and approved in Elkins v. Railway Co., 64 S. C. 561, 43 S. E. 19: Creech v. Railway, 66 S. C. 533, 45 S. E. 86; Hunter v. Railway Co., 72 S. C. 337, 51 S. E. 860, 110 Am. St. Rep. 605. The question in the Jarrell Case arose on a demurrer, but on this point there is no ground for distinction between a demurrer and a motion for a nonsuit. It would not only be illogical, but inconceivable in any system of jurisprudence that a court should have power to dismiss an action on the grounds that plaintiff has stated no cause of action, or stating it had also stated as a verity and a complete defense to it, assuming all his allegations of fact to be true, and yet should be without power on proof of the truth of the same allegations to adjudge as a matter of law that proof by the plaintiff of the facts alleged constituted a complete defense to his actions. Cases in other jurisdictions laying down the principles which we have stated will be found collected in Shearman and Redfield on Negligence, $ 114. There is no dif

ference in the application of the rule to the plaintiff and the defendant. If the defendant makes out the plaintiff's cause of action either in contract or tort by evidence which admits of no other inference than that the plaintiff is entitled to recover, it is the duty of the court to direct a verdict for the plaintiff, leaving it to the jury if the damages are unliquidated to fix the amount only. This is the principle applied to waiver in Hollings v. Bankers, 63 S. C. 193, 41 S. E. 90. There are strong reasons for the great caution which this court has always exercised in the use of its power to reverse a judgment of the circuit court refusing a nonsuit or a new trial, or the direction of a verdict, on the ground that the evidence admits no other inference than that there has been a complete failure of proof to make out the plaintiff's alleged cause of action, or that there had been complete proof by the plaintiff of a defense set up in the answer. But the court may not avoid the responsibility when a case like this arises calling for the exercise of this power. Juries try issues of fact. When the evidence makes no issue of fact, it is the duty of the court to announce the conclusion of law which the evidence requires. 5. Another ground on which responsibility for the injury was imputed to the defendant was set out in the twelfth paragraph of the complaint: “That the said duties and work assigned to the plaintiff on the occasion above described were not those plaintiff was ordinarily required to do in the scope of his employment as a flagman, but were unusual and outside of the ordinary duties of his employment, which, on the occasion in question, he was required to perform by the said defendant.” The plaintiff testified he contracted to work as a flagman, his ordinary duties being to protect the rear of the train, to see that the lanterns and flags were placed, and the torpedoes and fusees were kept and used when needed, and to keep the cab clean; but he also testified that, when he was employed, he was charged by the train master to obey the conductor or the engineer, and he regarded it within the scope of his employment to perform other labor, such as unloading freight and uncoupling cars, when so directed by the conductor. It is clear from the evidence that in uncoupling cars the plaintiff was not acting within the scope of the duties he had contracted to perform without directions from the conductor, but it is also clear he was acting within the scope of duties he had undertaken when directed by the conductor to perform them. The general rule is well established that the servant does not take upon himself risks which he would not reasonably expect to encounter because not within the scope of his contract of hiring. But, in order for this rule to be available, it must be shown that the servant was transferred to eSsentially new duties and that the order under which he acted was negligent. This is the view presented in Labatt on Master and Servints # 405-408, and it will be found very difficult to state a more accurate test, for from the nature of the subject each case must be decided on its own facts, whether the service required was essentially new and whether the order given was negligent are ordinarily questions of fact to be decided by the jury. But there are cases, and we think this is one of them, where it cannot be said there was any testimony upon which a finding could rest that the duty of uncoupling a car was essentially new and not within the capacity of the plaintiff and not contemplated by his employment. The plaintiff had been employed on the freight train about three months and for some time before had been on the railroad bridge force; and his testimony already quoted shows that he had full knowledge of the purpose for which the lever was provided and that he used it in a way not contemplated by the company in placing it or by the conductor in giving his Order, and the great and necessary danger of the method of use adopted by the plaintiff could not fail to be obvious to any reasonable Illild. The conclusion is irresistible that the plaintiff's injury was due, not solely to his own negligence, certainly to his contributory negligence, in taking unnecessary hazards to carry out the order of the conductor. We do not deem it necessary to refer separately to the errors alleged in the charge and in the admission of the testimony, as the foregoing discussion practically disposes of all the material questions made in the case which arose either on the motion for nonsuit or for a new trial. It is the judgment of this court that the judgment of the circuit court be reversed

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and the case remanded to that court for a Ilew trial.

GARY, A.J. (dissenting). While there was testimony tending to show that the plaintiff Was negligent, it likewise tended to prove *gligence on the part of the defendant in *ral particulars. The testimony was sus“ptible of more than one inference. Therefore it cannot be said that the negligence of the plaintiff was the proximate cause of his "jury, and the inference to be drawn from the testimony was properly submitted to the jury, especially when it appeared that the shootist did not have time for deliberation in executing the order to uncouple the cars. But there is even a stronger reason why the question of contributory negligence on the sort of the plaintiff was properly submitted to * jury. This was an interstate commerce thin, and the construction of the statute mentioned in the complaint involves a fedtral question, in which case this court is bound to follow the decisions of the United States Supreme Court. There is no differonce in principle between the present case and that of Schlemmer v. Railroad, 27 Sup. "47, from which we quote at length, as 'il L. Ed. 681.

it is decisive of the question under consideration. The facts in that case were as follows: “This is an action for the death of the plaintiff's intestate, Adam M. Schlemmer, while trying to couple a shovel car to a caboose. A nonsuit was directed at the trial and the direction was sustained by the Supreme Court of the state. The shovel car was part of a train on its way through Pennsylvania from a point in New York, and it was not equipped with an automatic coupler, in accordance withe the act of March 2, 1893, c. 190, § 2, 27 Stat. 531 [ U. S. Comp. St. 1901, p. 3174]. Instead of such a coupler, it had an iron drawbar fastened underneath the car by a pin, and projecting about a foot beyond the car. This draw bar weighed about 80 pounds, and its free end played up and down. On this end was an eye, and the coupling had to be done by lifting the free end possibly a foot, so that it should enter a slot in an automatic coupler on the caboose, and allow a pin to drop through the eye. Owing to the absence of buffers on the shovel car, and to its being so high that it would pass over those on the caboose, the car and caboose would crush any one between them if they came together, and the coupling failed to be made. Schleinmer was ordered to make the coupling as the train was slowly approaching the caboose. To do so he had to get between the cars, keeping below the level of the bottom of the shovel car. It was dusk, and in endeavoring to obey the order and to guide the drawbar he rose a very little too high, and, as he failed to hit the slot, the top of his head was crushed.” In reversing the decision of the state court the United States Supreme Court used this language: “It is enacted by section 8 of the act that any employé injured by any car in use, contrary to the provisions of the act, shall be deemed to have assumed the risk thereby occasioned, although continuing in the employment of the carrier after the unlawful use had been brought to his knowledge. An early, if not the earliest, application of the phrase “assumption of risk' was the establishment of the exception to the liability of a master, for the negligence of his servant, when the person injured was a fellow servant of the negligent man. Whether an actual assumption by contract was supposed on grounds of economic theory, or the assumption was imputed because of a conception of justice and convenience, does not matter for the present purpose. Both reasons are suggested in the well-known case of Farwell v. Boston & W. R. Corp., 4 Metc. 49, 57, 58, 38 Am. Dec. 339. But at the present time the motion is not confined to risks of such negligence. It is extended, as in this statute it plainly is extended, to dangerous conditions, as of machinery, premises, and the like, which the injured party understood and appreciated, when he submitted his person to them. In this class of cases the risk is said to be assumed, because a person who frankly and voluntarily encounters it has only himself to thank if harm comes on a general principle of law. Probably the modification of this general principle by some judicial decisions and by statutes like section 8 is due to an opinion that men who work with their hands have not always the freedom and equality of position assumed by the doctrine of laissez faire to exist. Assumption of risk in a broad sense obviously shades into negligence, as commonly understood. Negligence consists in conduct which common experience, or the special knowledge of the actor, shows to be so likely to produce the result complained of, under the circumstances known to the actor, that he is held answerable for that result, although it was not certain, intended, or foreseen. He is held to assume the risk upon the same ground. Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, GS, 24 Sup. Ct. 24, 48 L. Ed. 96. Apart from the notion of contract, rather shadowy as applied to this broad form of the latter conception, the practical difference of the two ideas is in the degree of their proximity to the particular harm. The preliminary conduct of getting into the dangerous employment or relation is said to be accompanied by assumption of the risk. The act more immediately leading to a specific accident is called negligent. But the difference between the two is one of degree rather than of kind; and when a statute exonerates a servant from the former, if at the same time it leaves the defense of contributory negligence still open to the master (a matter upon which we express no opinion), then, unless great care be taken, the servant's rights will be sacrificed by simply charging him with assumption of the risk under another name. Especially is this true in Pennsylvania, where some cases, at least, seem to have treated assumption of risk and negligence as convertible terms. Patterson v. Pittsburg & C. R. Co., 76 Pa. 389, 18 Am. Rep. 412. We cannot help thinking that this has happened in the present case, as well as that the ruling upon Schlemmer's negligence, was so involved with and dependent upon erroneous views of the statute that if the judgment stood the statute would suffer a wound.” This decision shows that the United States Supreme Court regards as “shadowy” the distinction between the assumption of risk, and contributory negligence, and that it will not allow the provisions of the statute to be abrogated by a mere change of name, in the designation of the defense. But, even if these defenses must be regarded as listinct, the same result should follow in this case. In critically reviewing the case of Schlemmer v. Railroad, supra, the Central Law Journal (May 3, 1907) thus clearly points out the distinction generally recognized, between assumption of risk and con

tributory negligence: “One has to do with the contract between master and servant, the other with the latter's own deliberate act and judgment independent of any contract requirement of the master. If a master tells a servant to do such and such a thing; and the servant sees the danger, or knows the defects of the appliances used, and the liability he is incurring, his undertaking to comply with his master's wishes is an assumption of the risks involved. It may be negligence on his part to do what he is doing, but it is negligence assumed by contract with his master, and of which his master has or ought to have knowledge. On the other hand, where a servant in the course of his employment does an act not demanded or called for by his master, and especially against the doing of which he is warned, and such act is clearly an act of negligence, the commission of such an act on his part amounts to contributory negligence, and is effective as a complete defense to a defendant in an action for damages.” Tested even by this distinction, the question whether the plaintiff assumed the risk, or was guilty of contributory negligence, was, in this case, proper for the jury. For these reasons I dissent.


ROSE v. STATE. (No. 247.)

ROSE CO. v. STATE. (No. 248.)

(Court of Appeals of Georgia. April 11, 1907.) 1. INToxicating LIQUORs—ILLEGAL. SAI.E.

Section 428 of the Penal Code of 1895, as amended by the act of 1897 (Acts 1897, p. 39), is by its terms made applicable only in those counties, cities, or other localities where the sale of spirituous, malt, or intoxicating liquors is prohibited by law, high license, or otherwise."

2. SAME. The sale of liquor is not “prohibited by law, high license, or otherwise,” in Bartow county. Therefore, an indictment in that county for an alleged violation of the said section as amended was invalid, and a conviction thereon was contrary to law, and must be set aside.

(Syllabus by the Court.)

Error from Superior Court, Bartow County; Fite, Judge.

Randolph Rose and the R. M. Rose Company were convicted of an illegal sale of liquors, and bring error. Reversed.

Rosser & Brandon, Ben. J. Conyers, and Neel & Peeples, for plaintiffs in error. Sam. P. Maddox, Sol. Gen., for the State.

HILL, C. J. In the superior court of Bartow county an indictment was returned against Randolph Rose, W. F. Baker, and R. M. Rose Company. The indictment contained two counts. The first charged a violation of section 431 of the Penal Code of 1895. The second charged a violation of section 428 of the Penal Code of 1S95, as amended by the act of 1897 (Acts 1897, p. 39). The defendants Randolph Rose and R. M. Rose Company interposed a demurrer to the sec0nd count, on the ground that it “does not allege a crime under the laws of this state, there being no law of force prohibiting, by high license or otherwise, the sale of liquors in Bartow county.” The court overruled the demurrer, and the defendants excepted to that judgment. The court instructed the jury that there was no evidence that any spirituOus, malt, or intoxicating liquors had been sold in Bartow county, and directed a verdict for the defendants on the first count in the indictment. The defendants were convicted on the second count of the indictment, and their motion for a new trial was overruled. The controlling question in this case is made by the demurrer to the second count of the indictment. This count, as before stated, charged the defendants with a violation of section 428 of the Penal Code of 1835, as amended by the act of 1897. The Offense is set forth in the language of the statute; it being alleged that W. F. Baker, Randolph Rose, and R. M. Rose Company, in Bartow county on the 1st day of January, 1307, did “sell, contract to sell, take orders for, and solicit, personally and by agent, the sale of spirituous, malt, and intoxicating liquors in said county of Bartow, where the sale of such liquors is prohibited by law, high license, or otherwise, said R. M. Rose Company being then and there a corporation doing business in this state, and said offense then and there having been committed within the corporate limits of the city of Cartersville, in the said county of Bartow.” Was the sale of spirituous, malt, or intoxicating liquors prohibited by law, high license, or Otherwise, in Bartow county at the time When the offense charged was alleged to have been committed? If such sale was not prohibited in that county, it follows that the Conviction, whatever may have been the facts in the case, was unlawful, and must be set aside. By its express terms, section 428 of the Penal Code of 1895, before and since the aslendatory act of 1897, makes it an offense, personally or by agent, to sell, contract to sell, take orders for, and solicit the sale of spirituous, malt, or intoxicating liquors, only in those counties in this state where the sale of such liquors is prohibited by law. Justice Cobb, in the case of Barker v. State, 117 Gà. 433, 43 S. E. 746, gives the legislative intent in the enactment of section 428 as follows: "The manifest purpose of this law is to prevent the sale of intoxicating liquors in * prohibition county, town, or district.” See, in the same connection, Loeb v. State, 115 Go. 241,41 S. E. 575 (2). The Supreme Court in Strauss v. Mayor of Waycross, 97 Ga. 476, * S. E. 329, says: “Prior to the passage of the act of December 18, 1893 [now section 428 of the Penal Code of 1895), soliciting orders for the sale of spirituous, malt, or other intoxicating liquors, in any ‘prohibi

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tion' county in this state was not indictable under any criminal statute of Georgia, but was for the first time made a state offense by the passage of that act.” Section 428 of the Penal Code of 1895 was amended by the act of 1897, by inserting after the word “sell,” in the second line, the words “contract to sell, take orders for.” It is clear that the Legislature of 1897 thought that this section applied only to those counties wherein the sale of liquor was then prohibited by law; for the caption of the amendatory act expressly restricted its application to “where the sale [of such liquors] is now prohibited by law.” In the case of Williams v. State, 107 Ga. 694, 33 S. E. 642, the Supreme Court holds that “the purpose of the act [section 428 of the Penal Code of 1895, as amended by the act of December 9, 1897] is to prevent whisky dealers from selling or contracting to sell, taking orders for, or soliciting, personally or by agent, the sale of intoxicating liquors in a 'dry' county, town, or district.” The use of the word “dry” was intended to designate those counties where the sale of liquors is prohibited by law. It is unnecessary to multiply authorities on this point, for it cannot be doubted that the plain, manifest purpose of section 428, as amended, was to protect from the liquor traffic those counties wherein the sale of liquors was prohibited by law, and that this section is applicable only in those counties where the sale is prohibited. It therefore follows that, if there was no valid law which prohibited the sale of spirituous, malt, and intoxicating liquors in the county of Bartow at the time when the alleged offense was committed, there could have been no violation of section 428, as amended by the act of 1897, in that county; and an indictment based on that statute was invalid. So the question recurs, was the sale of spirituous, malt, and intoxicating liquors prohibited by law, high license, or otherwise, in Bartow county on January 1, 1907, or at any time prior to that date, within the statute of limitations? Let us review the legislation on the subject of the liquor question, as applicable to Bartow county. On February 26, 1875 (Acts 1875, p. 338), a local act was passed, permitting an election in Bartow county to determine the question “whether or not spirituous, vinous, or malt liquors shall be sold, bartered, or in any way disposed of for a valuable consideration, in quantities less than one gallon.” No election was ever held under this act, and it never became operative. On February 21, 1876 (Acts 1876, p. 328), this act of 1875 was

amended, but there was no election under

the act as amended, and it never became effective. On December 2, 1884, a local act was passed entitled “An act to submit to the qualified voters of Bartow county the question of the sale and furnishing of intoxicating, alcoholic, spirituous, vinous, or malt liquors in said county, and to prohibit the same from being sold or furnished after said election, if a majority of those voting shall so determine, and to provide penalties for such sale and furnishing, and for other purposes.” This act was amended October 7, 1885, forbidding the sale of domestic wines at public places, and in quantities less than one quart. Acts of 1884–85, p. 541. An eiection was held under this act, and it received the number of votes necessary for its adoption, and became operative. On November 6, 1901, the Supreme Court, in the case of Griffin v. Eaves, 114 Ga. 65, 39 S. E. 913, following the principle ruled in Papworth v. State, 103 Ga. 36, 31 S. E. 402, and subsequent cases, declared that the special local act of 1884 for Bartow county was in conflict with the general domestic wine act of February 27, 1887, and was violative of that clause of the Constitution which prohibits special legislation in any case for which provision has been made by an existing general law. It was further decided in the same case that the general statute making it an offense to retail or sell intoxicating liquor without license was operative in Bartow county. Since the decision of the Supreme Court declaring the special local act of 1884–85 unconstitutional, this general law is the only one that has been of force in Bartow county. This law does not prohibit the sale of liquor. It permits the sale under a license granted by the proper county authorities. This is a regulation, and not a prohibition. It seems perfectly clear to us that it would be a legal paradox and a logical absurdity to hold that section 431 of the Penal Code of 1895, which regulates, and section 428, which prohibits, can be effective and operative at the same time in the same county or locality. We do not understand the able Solicitor General to combat the correctness of this position. He claims, on the contrary, that section 428 does apply in Bartow county, because in that county the sale of liquor is prohibited by law. He admits that such sale is not prohibited by high license, for high license does not necessarily prohibit. Neither does he claim that there is in that county any special prohibition law, or that the people of the county have prohibited the sale under the provisions of the general local option law. He supports his contention that the sale is prohibited in Bartow county by the word “otherwise,” used in the act of 1897, “prohibited by law, high license, or otherwise.” He contends that the act of 1874 (Acts 1874, p. 330), creating the board of county commissioners for Bartow county,


gives them exclusive jurisdiction to issue.

licenses for the sale of spirituous liquors in that county; that, having exclusive jurisdiction, the commissioners can refuse or grant licenses at their election ; and that the fact that no license has been granted shows that the policy of the county is not to legalize the sale of liquors, and therefore the sale of

spirituous liquors in that county is “other. wise prohibited by law,” the “otherwise prohibited by law” consisting in the fact that the county commissioners have not granted a license to sell in the county. The syllogism of the Solicitor General proceeds in this wise: Exclusive jurisdiction is given to the county commissioners of Bartow county to grant or to refuse licenses for the sale of spirituous liquors in that county. They have not granted a license. Therefore the sale of liquor is prohibited by law. The conclusion is a palpable non sequitur from the premise. There may be many reasons for not having issued a license. No one may have applied, or no one acceptable to the commissioners may have applied. Questions of policy or expediency may have induced the commissioners to refuse those who applied. But the power to license existed, and this precluded the possibility of prohibition. The Commissioners were not authorized by law to prohibit the sale of spirituous liquors, but only to regulate the sale thereof. Regulation is absolutely contradictory of prohibition. The former can never exist where the latter prevails, or vice versa. Even regulation that places the license so high that it amounts to practical prohibition does not, as a matter of law, probibit. Glover v. State, 126 Ga. 594, 55 S. E. 592. According to the Supreme Court, in Griffin v. Eaves, supra, the only penal law applicable to the sale of liquor in Bartow county is that contained in section 431 of the Penal Code of 1895, and this law could not be applicable in that county if the sale of liquor was prohibited. The truth of the proposition is self-evident, and argument seems superfluous. The words “otherwise prohibited,” relied on by the state, really mean nothing in this statute. When the Legislature used the words “prohibited by law,” it exhausted the Subject, and the addition of the words “high license or otherwise” was “wasteful and ridiculous excess.” These general words are Sometimes added to specific enumeration in statutes out of abundance of caution, but they usually mean nothing. Certainly such words must be “restricted to the same genus as the things enumerated,” and the use of the word “otherwise,” following the words “prohibited by law,” meant that the “otherwise" prohibition of the sale of liquor was to be a legal prohibition, that is, prohibited by the law of high license, or otherwise prohibited by law. But we do not think this general word means anything in this statute. Whatever it was intended to mean, it could not by any rule of logie give to the failure of the commissioners to grant licenses the force and effect of a positive enactment prohibiting the sale. The word “prohibit” is an active, transitive verb. As defined by the Standard Dictionary, it means “to forbid, especially by authority or legal enactment; interdict; as, to prohibit liquor selling, or a person from selling liquor.” The word “pro

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