48 Ga. 102 | Ga. | 1873
It is not because the men were engaged in an illegal act, that the defense of the railroad exists. It is because of the participation of the railroad company in that illegal act. This participation brings them within the rule — often an arbitrary .and sometimes an unjust rule — that the Court will not interfere to settle the disputes and litigation growing out of this mutual illegality. As we have said, however, there is evidence here to justify the conclusion that this negro was carried under the express stipulation of the employees of the road as an ordinary passenger, not at all- connected .with the illegal enterprise, and the jury should have had that view of the law before them. The charge of the Judge, as given, excluded any consideration of that evidence, and a new trial should be granted on that ground.
Judgment reversed.