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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 Serv
ants, $$ 465-468, and it will be found very it is decisive of the question under considerdifficult to state a more accurate test, for ation. The facts in that case were as folfrom the nature of the subject each case lows: “This is an action for the death of must be decided on its own facts, whether the plaintiff's intestate, Adam M. Schlemthe service required was essentially new and mer, while trying to couple a shovel car to whether the order given was negligent are a caboose. A nonsuit was directed at the ordinarily questions of fact to be decided by trial and the direction was sustained by the the jury. But there are cases, and we think Supreme Court of the state. The shovel car this is one of them, where it cannot be said
was part of a train on its way through there was any testimony upon which a find
Pennsylvania from a point in New York, ing could rest that the duty of uncoupling a
and it was not equipped with an automatic car was essentially new and not within the
coupler, in accordance withe the act of capacity of the plaintiff and not contemplat
March 2, 1893, c. 196, § 2, 27 Ştat, 531 (U. ed by his employment. The plaintiff bad
S. Comp. St. 1901, p. 3174). Instead of such been employed on the freight train about
a coupler, it bad an iron drawbar fastened three months and for some time before had
underneath the car by a pin, and projecting been on the railroad bridge force; and his
about a foot beyond the car, This drawbar testimony already quoted shows that he had
weighed about 80 pounds, and its free end full knowledge of the purpose for wbich the
played up and down. On this end was an lever was provided and that he used it in a
eye, and the coupling had to be done by liftway not contemplated by the company in
ing the free end possibly a foot, so that it placing it or by the conductor in giving his
should enter a slot in an automatic coupler order, and the great and necessary danger of the method of use adopted by the plaintiff
on the caboose, and allow a pin to drop could not fail to be obvious to any reasonable
through the eye. Owing to the absence of
buffers on the shovel car, and to its being man. The conclusion is irresistible that the
so high that it would pass over those on the plaintiff's injury was due, not solely to his
caboose, the car and caboose would crush own negligence, certainly to his contribu
any one between them if they came together, tory negligence, in taking unnecessary baz
and the coupling failed to be made. Scblemards to carry out the order of the conductor.
mer was ordered to make the coupling as the We do not deem it necessary to refer
train was slowly approaching the caboose. separately to the errors alleged in the charge
To do so he had to get between the cars, and in the admission of the testimony, as the
keeping below the level of the bottom of the foregoing discussion practically disposes of
shovel car. It was dusk, and in endea voring all the material questions made in the case
to obey the order and to guide the drawbar which arose either on the motion for non
he rose a very little too bigb, and, as he failsuit or for a new trial.
ed to hit the slot, the top of his head was It is the judgment of this court that the
crushed.” In reversing the decision of the judgment of the circuit court be reversed
state court the United States Supreme Court and the case remanded to that court for a
used this language: "It is enacted by secnew trial.
tion 8 of the act that any employé injured
by any car in use, contrary to the provisions GARY, A. J. (dissenting). While there was
of the act, shall be deemed to have assumed
testimony tending to show that
occasioned, although con
ipilorad to obes
ad citi s frog
was negligent, it likewise tended to prove
tinuing in the employment of the carrier negligence on the part of the defendant in
after the unlawful use had been brought several particulars. The testimony was sus
to his knowledge. An early, if not the earlceptible of more than one inference. There
iest, application of the phrase 'assumption of fore it cannot be said that the negligence of
risk' was the establishment of the exception the plaintiff was the proximate cause of his
to the liability of a master, for the negliinjury, and the inference to be drawn from
gence of his servant, when the person inthe testimony was properly submitted to the jured was a fellow servant of the negligent jury, especially when it appeared that the
Whether an actual assumption by plaintiff did not have time for deliberation
contract was supposed on grounds of ecoin executing the order to uncouple the cars.
nomic theory, or the assumption was imputed But there is even a stronger reason why
because of a conception of justice and conthe question of contributory negligence on the
venience, does not matter for the present part of the plaintiff was properly submitted to
purpose. Both reasons are suggested in the the jury. This was an interstate commerce
well-known case of Farwell v. Boston & W. train, and the construction of the statute
R. Corp., 4 Metc. 49, 57, 58, 38 Am. Dec. 339. mentioned in the complaint involves a fed
But at the present time the motion is not coneral question, in which case this court is
fined to risks of such negligence, It is ex. bound to follow the decisions of the United tended, as in this statute it plainly is exStates Supreme Court. There is no differ tended, to dangerous conditions, as of maence in principle between the present case chinery, premises, and the like, which the and that of Schlemmer v. Railroad, 27 Sup. injured party understood and appreciated, Ct. 407,1 from which we quote at length, as
when he submitted his person to them. In 151 L. Ed, 681.
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 disference 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 distinct, 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 SALE.
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 1895, 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 sec tion' county in this state was not indictable ond count, on the ground that it "does not al under any criminal statute of Georgia, but lege a crime under the laws of this state, was for the first time made a state offense by there being no law of force probibiting, by the passage of that act." Section 428 of the high license or otherwise, the sale of liquors Penal Code of 1895 was amended by the act in Bartow county." The court overruled the of 1897, by inserting after the word "sell," demurrer, and the defendants excepted to in the second line, the words "contract to that judgment. The court instructed the jury sell, take orders for.” It is clear that the that there was no evidence that any spiritu- Legislature of 1897 thought that this secous, malt, or intoxicating liquors had been tion applied only to those counties wherein sold in Bartow county, and directed a ver the sale of liquor was then prohibited by dict for the defendants on the first count in law; for the caption of the amendatory act the indictment. The defendants were con expressly restricted its application to "where victed on the second count of the indictment, the sale [of such liquors] is now prohibited and their motion for a new trial was over by law." In the case of Williams v. State, ruled.
107 Ga. 694, 33 S. E. 642, the Supreme Court The controlling question in this case is holds that “the purpose of the act [section made by the demurrer to the second count 428 of the Penal Code of 1895, as amended of the indictment. This count, as before by the act of December 9, 1897
is to prestated, charged the defendants with a viola vent whisky dealers from selling or contion of section 428 of the Penal Code of tracting to sell, taking orders for, or solicit1895, as amended by the act of 1897. The ing, personally or by agent, the sale of inoffense is set forth in the language of the toxicating liquors in a dry county, town, statute; it being alleged that W. F. Baker, or district.” The use of the word "dry" Randolph Rose, and R. M. Rose Company, in was intended to designate those counties Bartow county on the 1st day of January, where the sale of liquors is prohibited by law. 1907, did "gell, contract to sell, take orders It is unnecessary to multiply authorities on for, and solicit, personally and by agent, the this point, for it cannot be doubted that the sale of spirituous, malt, and intoxicating plain, manifest purpose of section 428, as liquors in said county of Bartow, where the amended, was to protect from the liquor sale of such liquors is prohibited by law, traffic those counties wherein the sale of high license, or otherwise, said R. M. Rose liquors was prohibited by law, and that this Company being then and there a corporation section is applicable only in those counties doing business in this state, and said offense where the sale is prohibited. It therefore then and there having been committed with follows that, if there was no valid law which in the corporate limits of the city of Carters prohibited the sale of spirituous, malt, and ville, in the said county of Bartow.” Was intoxicating liquors in the county of Bartow the sale of spirituous, malt, or intoxicating at the time when the alleged offense was liquors prohibited by law, high license, or committed, there could have been no violaotherwise, in Bartow county at the time tion of section 428, as amended by the act of when the offense charged was alleged to 1897, in that county; and an indictment have been committed? If such sale was not based on that statute was invalid, prohibited in that county, it follows that the So the question recurs, was the sale of conviction, whatever may have been the facts spirituous, malt, and intoxicating liquors in the case, was unlawful, and must be set prohibited by law, high license, or otherwise, aside. By its express terms, section 428 of in Bartow county on January 1, 1907, or at the Penal Code of 1895, before and since the any time prior to that date, within the stat. amendatory act of 1897, makes it an offense, ute of limitations? Let us review the legispersonally or by agent, to sell, contract to lation on the subject of the liquor question, sell
, take orders for, and solicit the sale of as applicable to Bartow county. On Februspirituous, malt, or intoxicating liquors, only ary 26, 1875 (Acts 1875, p. 338), a local act in those counties in this state where the sale was passed, permitting an election in Barof such liquors is prohibited by law. Jus tow county to determine the question "whethtice Cobb, in the case of Barker y, State, 117 er or not spirituous, vinous, or malt liquors Ga. 433, 43 S. E. 746, gives the legislative in shall be sold, bartered, or in any way distent in the enactment of section 428 as fol posed of for a valuable consideration, in lows: "The manifest purpose of this law is quantities less than one gallon.” No election to prevent the sale of intoxicating liquors in was ever held under this act, and it never 2 prohibition county, town, or district." See, became operative. On February 21, 1876 in the same connection, Loeb v. State, 115 (Acts 1876, p. 328), this act of 1875 was Go. 241, 41 S. E. 575 (2). The Supreme Court amended, but there was no election under in Strauss v. Mayor of Waycross, 97 Ga. 476,
the act as amended, and it never became ef25 S. E. 329, says: "Prior to the passage of fective. On December 2, 1884, a local act the act of December 18, 1893 (now section was passed entitled “An act to submit to the 428 of the Penal Code of 1895), soliciting qualified voters of Bartow county the quesorders for the sale of spirituous, malt, or
tion of the sale and furnishing of intoxicatother intoxicating liquors, in any 'prohibi ing, alcoholic, spirituous, vinons, or malt liq
uors 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 seenus 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 Partow 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 of 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 “otherwise 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, prohibit. Glover v. State, 120 Ga. 594, 55 S. E. 592. According to the Supreme Court, in Griffin w. 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 logic 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