The opinion of the court was delivered by
Mr. Chief Justice McIver.
This was an action to recover damages, for the benefit of deceased’s minor son, sustained by reason of certain injuries received by the intestate while crossing the track of the defendant company, by a collision with the train, which resulted in his death.
The plaintiff, in the first paragraph of his complaint, alleged that he had been duly appointed administrator of the derelict *14estate of the said Kaoly Ordey, who was killed by the negligence of the defendant company, on the 15th of December, 1889, at Graniteville, in the County of Aiken, iu the State of South Carolina, and then and there died intestate, leaving as his only heir at law and distributee, bis son, Alphonse Ordey, for whose benefit, this action was brought. The negligence, as alleged in the complaint, is, that the intestate, in the pursuit of his business, was crossing the track of the defendant company, at “a traveled place” on said track, “when the defendant carelessly, unexpectedly, and negligently, and without proper warning and due and reasonsble precaution, and without giving the signals required by section 1483 of the General Statutes of South Carolina, and without ringing its bell or sounding its whistle, caused one of its locomotives, which was drawing a train of cars, to rapidly approach the said intestate, Kaoly Ordey, and struck him, and so injured him that death ensued therefrom a few hours afterwards.” The defendant answered, relying, as a first defence, on a general denial of each and every allegation in the complaint. For a second defence, contributory negligence on the part of intestate was pleaded.
At the opening of the case, defendant’s counsel were asked by the court the following question: “You don’t admit the first allegation of the complaint?” To which the reply was: “No, sir.” Counsel for plaintiff then offered in evidence a certified copy of the letters of administration granted by the judge of probate of Aiken County to the plaintiff. To this evidence counsel for defendant objected, claiming that he denied the appointment of the administrator, upon the ground, as it would appear, that the probate court had no jurisdiction to make such appointment; and that if the whole record of the proceedings in the Court of Probate leading up to the alleged grant of administration were produced, such record would show that the Court of Probate had no jurisdiction to grant such letters of administration. The objection was overruled and the paper admitted, the Circuit Judge holding that the statute (section 2182, Geueral Statutes,) made the certificate evidence.
It seems, also, that in developing the testimony on the part *15of the defence, John T. Gaston was examined, and after stating that he was judge of probate for the County of Aiken, and as such had granted the letters of administration to the plaintiff, he was asked to produce the record of the proceedings in the Court of Probate which culminated in the grant of the letters of administration, which was objected to on the ground that the certified copy of the letters of administration, which had been received in evidence, could not be attacked in any way in this court, for that would be a collateral attack. Counsel for defendant also stated that he proposed to prove by this witness, outside of the record, that the real facts of the case, and which were brought before him as probate judge, were such as would not give him jurisdiction; the facts desired to be brought out being that Ordey was not a citizen or resident of Aiken County, but was a transient person, passing through said county at the time he was killed, and that he had no property or assets of any kind in said county. The objection was sustained, the Circuit Judge holding that he could not go behind the certified copy of the letters of administration in this proceeding, for that paper, under the statute, is conclusive in this court. On the next day after this ruling was made, and after the testimony was closed, the Circuit Judge stated that, in addition to the reasons given for his ruling at the time, he would hold that, as no point was raised in the answer or by a demurrer as to the capacity of the plaintiff to sue, it could not now be raised.
The testimony in the case wás very voluminous and conflicting, as to whether the statutory signals were given, as to whether the deceased was guilty of contributory negligence, as to the alleged intoxication of the deceased at the time of the disaster, as to the character of the crossing where the injury was alleged to have been sustained, whether, or not, it was “a traveled place,” in the sense of the statute, and other issues. The jury rendered a verdict in favor of the plaintiff, and judgment having beeu entered thereon, the defendant appeals upon the several grounds set out in the record.
It seems to us that these grounds may be divided into the following classes, viz: 1st. Those which assail the rulings of *16the Circuit Judge in respect to the admissibility of the certified copy of the letters of administration, and of the whole record of the Court of Probate under which such letters were granted. 2d. As to the charge and refusals to charge by the Circuit Judge in respect to the negligence imputed to the defendant, and of the contributory negligence imputed to the plaintiff. 3d. As to the effect of the alleged intoxication of the plaintiff at the time he reeeceived his death wounds. 4th. As to the question whether the crossing was “a traveled place,” in the sense of the statute.
1 Mrst. As to the admissibility of the evidence adduced, and offered and rejected, as. to the right of the plaintiff to the character in which he sues. But before proceeding to a consideration of the merits of this question, it will be necessary to determine whether the additional reason given by the Circuit Judge for his rulings in this respect is well founded. That reason seems to have been, that as the defendant raised no question, either by demurrer or answer, as to the capacity of the plaintiff to sue, he cannot be permitted to do so afterwards. There can be no doubt, under the decisions in this State (Commercial Insurance &c. Company v. Turner, 8 S. C., 107; Steamship Company v. Rodgers, 21 Id., 27; Palmetto Lumber Company v. Risley, 25 Id., 309), that the issue of the capacity of plaintiff to sue cannot be raised by a general denial of all the allegations of the complaint, but must be raised either by demurrer, where the necessary facts appear on the face of the complaint, or by a special denial in the answer; and in the absence of any such demurrer, or special denial, the allegation in the complaint as to the character in which plaintiff sues, must be regarded as admitted. But in this case, the plaintiff, not relying upon the implied admission arising from the want of any demurrer or special denial in the answer, saw fit to offer evidence showing that he was the duly appointed administrator of the intestate. When such evidence is offered, it seems to us that it is open to any legal objection to which it may be amenable, just as any other evidence which the plaintiff may offer; and, what is more, it opens the door to any other evidence which the defendant may offer, provided it is competent *17in reply to, or in explanation of, that which the plaintiff has introduced.
2 It is true that section 2182 of the General Statutes does provide that a certified copy of the letters of administration “shall be sufficient evidence of the appointment of such executor or administrator in any court in this State,” but that statute only supersedes the necessity of introducing the whole record of the proceedings in the Court of Probate, which would otherwise have been necessary. For the letters of administration amount, practically, to a judgment of the Court of Probate, rendered on proceedings, of record in that court, instituted for that purpose, and, in the absence of any statute upon the subject, the general rule would require that the whole record of the proceedings, culminating in a judgment, would have to be introduced in order to prove the judgment. But the statute having provided that a certified copy of the letters should be sufficient evidence of the appointment of the administrator, we must hold that there was no error in receiving the certified copy in evidence, notwithstanding the fact that it was insisted by counsel for defendant that the whole record, if introduced, would show a lack of jurisdiction on its face. When, however, the defendant, while introducing its own testimony, offered the whole record in evidence, for the purpose of showing that the court issuing the alleged letters of administration had no jurisdiction to do so, then the question assumes a totally different aspect. If the proposition had been to offer evidence that the alleged certified copy of the letters of administration was a forgery, we can scarcely suppose that there would beany doubt of the admissibility of such evidence, for that would be to show that the alleged letters were not what they purported to be, and were not what the statute contemplated. So, too, any competent evidence, showing that the court undertaking to grant such letters of administration had no jurisdiction to do so, would be alike admissible: for if the court had no jurisdiction, then the alleged letters of administration would be mere nullities, and surely the certified copy would be no better.
*183 *17It is contended, however, that the judgment of the Court of Probate, evidenced by the certified copy of the letters of ad*18ministration, cannot be attacked in this collateral proceeding. That depends upon whether the judgment in question is absolutely void or is merely voidable. If the former, then it is a mere nullity, and may be so treated wherever it is encountered; but if the latter, then it cannot be attacked in any collateral proceeding, but must be avoided, that is, rendered void, by some direct proceeding instituted for that purpose. As we understand it, the test whether a judgment is void, or merely voidable, for want of jurisdiction, is whether the lack of jurisdiction appears upon the face of the record, or where the infirmity must be shown by evidence outside of the record. In the former case it is absolutely void, for in such a case no inquiry is necessary to show what appears on the face of the record, while in the latter case such inquiry is necessary to ascertain the facts showing the lack of jurisdiction. These principles are fully sustained in the case of Turner v. Malone, 24 S. 0., 398. Now, as defendant’s counsel proposed to introduce the entire record, claiming that it would show upon its face a lack of jurisdiction, we think the Circuit Judge erred in refusing to receive such evidence when offered for that purpose. What the record would really show, we are not informed. If it should show that there was a lack of jurisdiction, then it was competent; but if, on the contrary, it should not show any want of jurisdiction, then no harm would be done, as it would not avail the defendant anything. We desire to add, however, in view of the fact that defendant’s counsel also proposed to show, by parol evidence, outside of the record, other facts teuding to show a lack of jurisdiction in the Court of Probate, which undertook to grant the letters of administration, that we do not hold that such parol evidence would be admissible; and, on the contrary, we think that, under the principles hereinabove announced, such evidence would be inadmissible in this proceeding.
4 Second. As to the various exceptions to the charge and refusals to charge, we think that none of them can be sustained. Looking at the charge of the Circuit Judge as a whole, as it must be, we think a careful examination of it will show that the various points excepted to are either em*19braced in the charge, though stated in different phraseology, or that the exceptions are based upon a doctrine, which, while it seems to prevail elsewhere, as shown by the authorities cited by counsel for appellant, has never been recognized in this State; and, for the purpose of showing this, the entire charge of the Circuit Judge, together with appellant’s exceptions, should be embraced in the report of this case. The doctrine thus referred to is this, that the Circuit Judge, when requested so to do, is bound to charge that certain facts, which' have been recognized as sufficient evidence of negligence on the one hand, or contributory negligence on the other, are sufficient evidence of such negligence; but that doctrine has never been recognized here, mainly for the reason that it involves a violation of our constitutional provision which forbids a judge from charging on the facts. On the contrary, the rule here is, that while the judge is bound to instruct the jury as to what is negligence, in its different degrees, he is not allowed to say to the jury that any particular fact or facts are sufficient to prove negligence, or contributory negligence. As was held in Petrie v. Railroad Company, 29 S. C., at page 322, reaffirming the same doctrine previously laid down in Bridger v. Railroad Company, 25 S. C., at pages 30, 31: “The rule, as we understand it, is, that the province of the judge is to give the jury a definition of the term negligence, or gross negligence, and then it is the exclusive province of the jury to determine whether the facts proved in a given case constitute negligence, or gross negligence;” and the same doctrine applies to contributory negligence. Of course, exceptions to this general rule may be, and have been, established by statute; as, for example, that the failure of a railroad company to ring the bell or blow the whistle within a prescribed distance before the train reaches a crossing of any public highway, &c., shall, of itself, constitute sufficient proof of negligence.
5 Third. As to the effect of the alleged intoxication of the plaintiff’s intestate, we see no error in the charge. The Circuit Judge could say no more than what he did say upon that subject, to wit: That if the man was intoxicated, that fact could and should be taken into consider*20ation by the jury in determining the question of contributory negligence. It seems to us a misconception of the charge to suppose that the jury could have been so misled by the language, as to believe that if the drunkenness of the deceased was known to any agent of the defendant company, as, for instance, the station agent at G-raniteville, that could affect the question; for, in the same connection, the jury were explicitly told that the agents referred to were the “conductor, engineer, or fireman, or those who had the charge of the train.” The very obvious meaning of the charge was, that if those who were in charge of the running of the train which caused the disaster, should see a drunken man staggering on the track, the plainest instincts of humanity should prompt them to more care in approaching such a person while on the track, as he would be less likely to be able to get out of the way than a sober man in full possession of all his faculties.
6 Fourth. As to the question as to what would constitute “a traveled place,” in the sense of the statute, it seems to us that the Circuit Judge was somewhat in error. The rule, as we understand it, is, that to constitute “a traveled pi ace,” it must not only be a place where persons are accustomed to travel, but it must also be a place where persons have, in some way, acquired the right to travel. Hale v. Railroad Company, 34 S. C., at page 299, affirmed in Barber v. Railroad Company, 34 S. C., at page 450. Now, while the Circuit Judge seems to have recognized this rule, yet when he proceeded to instruct the jury as to how this right might be acquired, it seems to us that he erred. The fact that all persons who desired to do so had been accustomed to use the footpath at the crossing in question, with the knowledge and acquiescence of the railroad company, was not, of itself, sufficient to establish the legal right to cross; but there must be something more, something to show an adoerse use of the crossing, or something to show that the railroad company recognized the right of the public to cross at the point in question.
The same principles which govern where the question is as to an alleged right of way over the lands of a landholder, acquired by prescription, must govern here. There the doctrine *21is that the mere fact that persons have, for any number of years, been accustomed to use the way in question, is not sufficient, but there must be something to show that such use was of an adverse character, or that the owner of the soil had in some way recognized the legal right of persons to use the way. Rowland v. Wolfe, 1 Bail., 56; McKee v. Garrett, Ibid., 341; Golding v. Williams, Dudley, 92. It is true, that in the subsequent case of Sims v. Davis, Cheves, 1, some dissatisfaction was expressed with the cases above cited from Bailey, but only so far as they were supposed to hold that no right of way by prescription could be acquired over the unenclosed lands of another, and the case in no way modifies the rule we have laid down. On the contrary, the case from Cheves lays down the rule as follows: “that the use of every such way is permissive, or held at sufferance, where the claimant has done no act showing that he claimed the right adversely, and the allowance of the use by the owner of the soil has been unaccompanied by any act which shows a recognition on his part of the right of the claimant to use the road without his permission.” See, also, Gibson v. Durham, 3 Rich., 85.
There being some evidence tending to show that the railroad company was accustomed to separate their cars, when left standing on the track for any length of time, for the purpose of leaving an opening for persons to cross the track at the point in question, the Circuit Judge instructed the jury that, if “the railroad company during the twenty years exercised when it pleased the right to stop up the path, by allowing the cars to stand across the path at its own will, then the attempted possession of twenty years, within that period which completes the statutory right of way assumed, is broken, and the public has acquired no such right as makes it, the path, a traveled place.” But this instruction necessarily implied that if the path was not stopped up at the pleasure of the company, then the public would acquire the right, without any other evidence of adverse use, or recognition of the right of the public by the company. This we cannot approve, as it may be that the opening was left as a mere matter of accommodation to the public, unless there was some evidence tending to show (as there was not) that the *22opening was left upon the demand of persons accustomed to use that path, for .that would imply a recognition of the right to use the path. Observation and experience show that it is quite a common thing to find well beaten paths not only immediately alongside of the track of a railroad, but crossing such track at various points along the line, which are freely used by all persons desiring to do so,, which use must be presumed to be known to the railroad company through its agents and servants, and we think it would never do to hold that such use, if continued for the requisite length of time, would ripen into a legal right.
By reason of the errors indicated, the judgment below must be reversed and a new trial granted. The judgment of this courtis, that the judgment of the Circuit Court be reversed, and the case remanded to that court for a new trial.
Mr. Justice Pope.
I prefer to base my concurrence in the judgment of this court, granting a new trial upon the error of the Circuit Judge in refusing to allow the defendant to introduce in testimony the record from the Probate Court for Aiken County, in the matter of administration upon the estate of plaintiff’s intestate. I have doubts as to so much of the opinion of the court relating to the rule of law touching crossings used by the public over defendant’s railroad track, where such crossings are located at or near a station where passengers are invited to enter and get off the passenger trains of such railroad.