Rollestone v. Cassirer & Co., 59 S.E. 442

Rollestone v. Cassirer & Co.

59 S.E. 442

Ga. Ct. App.

1907

Check Treatment

Powell, J.

1. The different aspects in which the liability of the owner or proprietor of premises for injuries received by persons present thereon might be viewed were pointed out and discussed by this court at some length in the case of Mandeville Mills v. Dale, 2 Ga. App. 609 (58 S. E. 1060). If the deceased was on the premises by invitation, express or implied, the proprietor of the saloon was under a higher duty to him than if he was there' -as a bare licensee. It is conceded that ordinarily the opening ■of a public place of business is an invitation to members of the public to come in and transact that business; that customers in a place of business where goods are sold are ordinarily not bare licensees; but it is said that in this case no such invitation is to be implied,, because, under the allegations of the petition, the plaintiff was a drunk man, and by the Penal Code, §443, “Any .seller of spirituous liquors who shall sell or furnish liquors or •other intoxicating drinks to any person who is at the time intoxicated or drunk shall be guilty of a misdemeanor.” In the absence ■of an allegation that the defendant had been accustomed to sell to the deceased or others when they were drunk, or any other allegation tending to show that the deceased had reasonable cause to *166believe that the defendants were willing to entertain his offer to' buy on the occasion under consideration, we are led to hold, in the. light of the statute quoted, that no invitation to the deceased to-come for the purpose for which the petition says he came can be implied against the defendant. He was on the premises as a licensee; for members of the public, of the class usually allowed to enter, will not be considered as naked trespassers, when they are, without objection, peaceably in a- public business house, though, having no immediate business with the proprietor.

We are not to be understood as holding that one can be regarded, as an invited person in a saloon only when he is approaching the; counter to buy or when he is actually drinking. On the contrary, a person who-has no intention of drinking at all may stand in this, relation. For instance, if the proprietor places pictures, baseball scores, free lunches, musicians, or other things in his saloon, to-attract persons there, with a view of advertising his business and with the hope that some or all of them may drink at his bar, such persons as come in response to this implicit invitation are more; than bare licensees. So also, those persons who, having recently been customers or presently intending to be, with the proprietor’s, acquiescence and in accordance with common usage, sit or stand, in the saloon, are more than licensees. Under this petition, however, the attempt to raise the. implication of an invitation rests, solely upon the fact that deceased entered to buy liquors, — a.' thing he could not reasonably expect to do in his drunken condition.

3. The owner or proprietor of the premises is, however, not free-from' duty to a licensee. The premises must not contain pitfalls,, man-traps, and things of that character. Mandeville Mills v. Dale, supra. “There is a class of decisions holding that it is. ■ actionable negligence for the owner of grounds, over which people-are accustomed to pass, to expose thereon anything which is peculiarly dangerous. These decisions proceed on the ground that-such conduct is a wanton violation of the obligations which, in a state of society, every individual holds to every other. . . This, is not a negation of the doctrine that the owner of a private building being erected on a private lot owes'no duty to trespassers and idlers, or persons visiting the premises merely for their individual benefit or for curiosity, other than that he shall inflict upon them. *167no wilful or wanton injury. . . The sound view seems to be that the owner or occupier of real property may become liable, on the footing of negligence, to persons who are injured in their persons or their property, through the needless, wanton, or grossly negligent act of exposing other dangerous things upon his premises or upon the highway adjacent thereto, attracting children or animals or endangering the safety of the unwary.” 1 Thomp. Neg. (ed. 1901) §950. “Some courts, disregarding distinctions relating-to trespassers,-intruders, hare licensees, etc., place the doctrine on the broad and just ground that the owner or occupier of premises is bound to exercise ordinary care to the end of keeping his premises in such condition that they will not, by reason of any insecurity or insufficiency, injure any person rightfully in, around, or passing by them, — at the same time holding that such owner or occupier is not an insurer against accidents which may happen from the condition of the premises. The distinction is that the person coming upon the premises, to whom this duty of care is due, must not come as a mere trespasser or wrong-doer, but for some purpose lawful in itself, and such as the owner or occupier might reasonably expect to bring him there. This being the rule, if the person injured is rightfully upon the premises, it will make no difference with reference to his right of action for the injury whether he is 'there as' a licensee or by invitation.” Id. §969. We think that, while a difference exists between the elemental concepts upon which the respective liabilities arise in cases of licensees and of invited persons, also between the terms in which the respective duties are theoretically to be stated, and while in theory the degree of care required in one case may differ from that required in the other, still, frequently the actual quantum of diligence necessary to fulfil the legal duty, under the circumstances, owing to the licensee is no less than it would be if he were an invited person. Theoretically the degree of diligence owing by the proprietor of the premises, who has a pitfall thereon to a licensee is less than that due his invited guest; yet, after the presence of the licensee is known, exactly the same acts of caution may be required of the proprietor, to satisfy the legal duty, as would be necessary if the licensee were invited. Indeed, we can conceive that the owner of lands on which a dangerous thing exists may be in legal duty bound to use a greater quantum of precaution in *168behalf of an infant licensee thereon than he would in behalf of an adult invited guest. The sum of the whole matter is included in the expression frequently enunciated that “duties "arise out of circumstances.”

In the case of Newark Electric Co. v. Garden, 78 Fed. 74 (23 C. C. A. 649, 37 L. R. A. 725), Judge Dallas, after referring to the general rule that as to trespassers the landowner may keep his premises in such condition as he sees fit, quotes approvingly from Hydraulic Co. v. Orr, 83 Pa. St. 332, as follows: “It is true that, where no duty is owed, no liability arises. . . But, as has often been said, duties arise out of circumstances. Hence, where the owner has reason to apprehend danger, owing to the peculiar situation of his property, and its openness to accident, the rule will .vary;” and adds the following: “It makes no difference, where the circumstances give rise to duty, that the plaintiff was ‘technically a trespasser.’ Schilling v. Abernethy, 112 Pa. St. 437 (3 Atl. 792, 56 Am. R. 320). The true question is: Was he ‘a trespasser there, in a sense that would excuse the defendant for acts of negligence, . . whether .the owner or occupant of premises is liable under any circumstances, and, if so, under what circumstances, for injuries received by a person while on- such premises, and by reason of their dangerous condition?’ In Railway Co. v. McDonald, 152 U. S. 262 (14 Sup. Ct. 619, 38 L. ed. 434), the question was thus stated, and, in answering it, the Supreme Court held that, under the circumstances of that case, the person injured could not be regarded ‘as a mere trespasser, for whose safety and protection, while on the premises in question, against the unseen danger referred to, the railroad company was under no duty or obligation whatever to make provision.’ The fact that, in aE these eases, the court gave due weight to the circumstance that, in each of them, the person injured was a child, would not justify us in restricting the application, of the principle upon which they were decided to cases which present the same peculiarity. The doctrine of all of them is that a duty of care may, by reason of the circumstances, be due from the owner of property to one who is technically a trespasser upon it; and the youth of those most likely to suffer from a failure to discharge such duty is simply one of the circumstances which, when present, is to be considered with the rest. The opinion of the court in the *169■case last cited can not be read without perceiving that the matter was .so viewed by the Supreme Court of the United States; and the Supreme Court of Pennsylvania, by which the two cases first cited were decided, has repeatedly held' that a child may be such a trespasser as to be subject to the consequences of his trespass. It has never laid down one rule with respect to children and another respecting adults, but has man}^ times said that the former, like the latter, when trespassers ‘in every sense of the word/ are to be regarded as wrongdoers to whom the owner of the premises is under no obligation.” In the case of Shilling v. Abernethy, 112 Pa. St. 437 (56 Am. R. 320), cited above, involving an iñjury to •a licensee or trespasser, the court holds: “Where one has reason to apprehend danger from the peculiar situation of his property and its openness to accident, the rule that where no duty is owed no liability arises will not prevail; but the question of liability must be submitted to the jurjq to be determined upon all the facts of the case. Circumstances may beget duties which under ordinary circumstances can not be implied; ancí when such circumstances are showm to exist, the question arising therefrom is not for the ■court, but for the jury.” Also in Murray v. McShane, 52 Md. 217 (36 Am. R. 367), it is held that “A person lawfully passing along a street, who stops on the door sill of a house fronting on the street, for the purpose of adjusting his shoe, and' while thus occupied, his head being within the lines of the street, without ■any negligence on his part is injured by a brick falling on his head, in consequence of the dilapidated condition of the wall of the house, has a right of action against the owner of the house for the injury inflicted.” In Kinchlow v. Midland Elevator Co., 57 Kan. 374 (46 Pac. 703), there is a holding that “Where an owner of premises has reason to apprehend danger from the peculiar situation and condition of certain of their appurtenances and their openness to accident, the question whether he has exercised due care or not, as well as that of the contributory negligence of a person injured thereon, becomes one for the jury, to be determined upon all the facts and circumstances of the case.” In the case just cited a licensee stepped upon a cover apparently safe, 'but which, after the manner of a trap-door, precipitated him into a barrel of hot water. In Bransom v. Labrot, 81 Ky. 638 (50 Am. R. 193), the court, sustaining a recovery in favor of a licensee or *170trespasser, says: “As a general rule, tlie owner of land may retain to himself the exclusive use and occupation of it; hut as property in lands depends upon municipal law for its recognition and protection, the use and enjoyment qf it are subject to conditions imposed for the welfare and rights of others.” Also, to quote from the same case, “It is held that a party is guilty of negligence in leaving anything in a place, when he knows it to be extremely probable that some other person will unjustifiably set it in motion, to the injury of a third person. (1 Addison on Torts, §11.) And said a learned judge: ‘It appears to us that a man who leaves in a public place, along which persons, and among them children, have to pass, a dangerous machine, which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful 'act, or negligence of the defendant, has given occasion.’ (39 B. Din. 339). . . ‘It would be a barbarous rule of law. that would make an owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor’s dog, attracted by his natural instinct, might run into it and be killed, and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child attracted to it and tempted to meddle by instincts equally as strong, might thereby be killed or maimed for life. Such is. not the law.’ (9 Bast, 277).”

In Union Pac. R. Co. v. McDonald, 152 U. S. 279 (14 Sup. Ct. 619, 38 L. ed. 434), a boy stepped into slack lime which was spread upon the ground, but which upon its surface gave no indication of danger. Justice Harlan, speaking for the court, says: “Applied to the ease now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the-slack pile, made by it in the vicinity of its depot building. It. could have forbidden all persons from coming to its coal mine for the purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its. *171slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have-suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or hail prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to.be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or fox whose protection it was under no obligation to .make provision.” While the plaintiff in that case was a boy of tender years, yet this fact does not (as will appear by reading the entire opinion) affect the generality of the rule, except upon the question of the plaintiff’s contributory negligence. See also Penso v. McCormick, 125 Ind. 116 (25 N. E. 156, 9 L. R. A. 313, 21 Am. St. R. 211); Bennett v. R. Co., 102 U. S. 577 (26 L. ed. 235). Of the decisions of the Supreme Court of this State, we call attention to the following: Augusta R. Co. v. Andrews, 89 Ga. 653 (16 S. E. 203); s. c. 92 Ga. 706 (19. S. E. 713), distinguished in Mandeville Mills v. Dale, 2 Ga. App. 609 (58 S. E. 1062); Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145 (4 S. E. 759, 12 Am. St. R. 244); Folsom v. Lewis, 85 Ga. 146 (11 S. E. 606). As to the duty of warning against pitfalls in such cases, see 1 Thomp. Neg. (ed. 1901) §993. The duty of warning against such danger becomes only the more imperative when the licensee or invited person has bad eyesight, is intoxicated, or is suffering from other infirmity known to the proprietor of the premises. Brown v. Stevens, 136 Mich. 311 (99 N. W. 12); White’s Supplement to Thompson bn Negligence, §993.

Heavy articles which are apparently in stable equilibrium or which are usually found securely fastened, but which are in fact in unstable equilibrium and not fastened, may fairly be placed in the same category with pitfalls and man-traps. The counter in this case — to borrow an expression from the case of Newark Co. v. Garden, 78 Fed. 79 (23 C. C. A. 649, 37 L. R. A. 725), was “not a trap, for there was no intention to ensnare, but was an *172unknown, an invisible peril to which he [the deceased] might unconsciously or involuntarily be drawn, and from which, by talcing ordinary care, the defendant might have protected him.” Compare Eton Co. v. Langston, 24 Can. S. C. 708, s. c. 21 Ont. App. R. 624, s. c. 25 Ont. R. 78, wherein the unfastened object which fell was a large mirror.

There is another general rule upon which the defendant relies with great confidence, — that the owner is not responsible for an injury occasioned by putting one of his instrumentalities to a use for which it is not intended. In this case the petition alleges that one of the uses for which this counter was intended was that identical use the deceased attempted to make of it. Besides, the general rule is not so universal of application as to exclude a finding of negligence in those cases where the owner of premises, who has .a reason to apprehend the innocent presence of persons thereon, knowingly allows his property to be or to remain in such situation that a visitor, although making no use of the premises other than a reasonably prudent person under like circumstances would be expected to make, is liable to be injured by coming in contact with what appears to be in its normal condition and safe, when as a matter of fact it contains a secret and hidden danger. See Mayor of Jackson v. Boone, 93 Ga. 662, 665. Suppose the proprietor of this saloon had purchased a keg of nitroglycerine for the purpose of doing some blasting and had temporarily set it down in the middle of his saloon floor where a casual passer was liable to kick against it; would he, in response to a suit by one who through inadvertence had run against it and exploded it, be heard to say, as a complete defense, that the deceased put the nitroglycerine to a purpose for which it was not intended ? Compare Babcock v. Johnson, 120 Ga. 1035 (48 S. E. 438); also Schofield v. Wood, 170 Mass. 415 (49 N. E. 636).

3. The trial judge, in addition to holding that the defendant owed the deceased no duty, also held that the alleged negligence w&s not the proximate cause of the injury. We presume that he based this upon the view that the act of the deceased in stumbling and catching -hold of the counter was the proximate cause. It took the concurrence of the act of the defendant, in leaving the ■ counter in a state of unstable equilibrium, and the act of the deceased in grasping it, to cause the harm. The counter, if the de*173ceased had not touched it, would not have hurt him. His own stumbling and catching would not have killed him, if it had not set in motion the not reasonably to be expected danger contained in the condition of the counter. Neither alone was sufficient to-cause the homicide. “It is no defense in an action for an injury resulting from negligence that the negligence or wilful wrong of third persons, or an inevitable accident, or an inanimate thing,, contributed to cause the injury, if the negligence of the defendant was an efficient cause without which the injury would not have occurred. A juridical cause need not be the sole cause.” Jaggard on Torts, 67. “If the damage has resulted directly from concurrent wrongful acts or neglects of two persons, each of these acts may be counted on as the wrongful cause.” Cooley on Torts (3d ed), 119. “Although an act of the plaintiff himself, intervening between the defendant’s wrong and the injuries suffered, has concurred in producing the damages for which*a recovery is sought, the defendant is not thereby excused, if such intervening act was the natural result of, or was naturally and reasonably induced by, the antecedent act of' the defendant. And the rule is the same where, though the plaintiff’s act may not in strictness have been caused or induced by the defendant’s act or omission, yet the latter caused or created a negligent and dangerous condition, upon which the plaintiff’s act, harmless and innocent in itself, and of a nature which might have been anticipated, operated to produce the injuries received.” Watson, Damages for Personal Injuries, §75. In the case of Postal Tel. Cable Co. v. Zopfi, 73 Fed. 609 (19 C. C. A. 605), before the United States Circuit Court of Appeals for the Sixth Circuit, where it appeared that the defendant placed a pole across a platform upon which the plaintiff had to walk from her house to the street, and the plaintiff, in stepping over the pole, slipped upon the platform which was wet, the defendant contended that the slippery condition of the platform was the proximate cause; but Judge Lurton, speaking for the court, says: “Still, the fact remains that the facts and circumstances were such that either of two inferences might be made, — -one that the wet platform was the sole cause of her fall; the other, that the . pole proximately and efficiently contributed, in co-operation with the wet platform, to her fall. If the jury should be of opinion-from all the facts that but for the pole she would probably not *174have fallen, then, though the pole was not the causa causans, it would be a cause without which the fall would probably not have ■occurred. Upon such a finding the liability of the plaintiff in error would be clear. McDonald v. Railway Co., decided by this court, April 14, 1896, 74 Fed. 104 (20 C. C. A. 322).” In Barney v. Burstenbinder, 7 Lans. (N.Y.) 210, the negligent shipping of a case of nitroglycerine without indicating the contents of the package was held to be the proximate cause of the injury, though the explosion immediately arose by reason of the fact that the plaintiff (the carrier) was examining the package to see what it contained. In Walters v. Denver Consolidated Electric Co., 12 Colo. App. 145 (54 Pac. 960), where the plaintiff came into contact with an unprotected live wire, it was held that the condition of the wire, and not the acts by which the plaintiff came into contact' therewith, was the proximate cause of the injury. For further illustrative eases, see Rosenbaum v. Shoffner, 98 Tenn. 624 (40 S. W. 1086); Porcella v. Mutual Reserve Ins. Co., 50 N. Y. App. Div. 158 (63 N. Y. Supp. 599); Prescott v. Connell, 22 Can. S. C. 147; Willis v. Providence Pub. Co., 20 R. I. 285 38 Atl. 947. In this State, somewhat contrary to the general rule, we have provided by statute for recoveries in cases where the injury is the result of the; concurrent acts of the plaintiff and of the defendant, even though those of the plaintiff be also negligent. If by ordinary care the plaintiff could have avoided the effects of the defendant’s negligence, or if the injury would not have occurred but for the plaintiff’s failure to use ordinary care, the defendant will not be held liable, though also negligent; “but in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.” Civil Code, §3830. In cases where both parties have been negligent, and the plaintiff’s negligence does not amount to a failure to use ordinary care, a comparison is made between the respective wrongs' or neglects, and a corresponding diminution in the amount of the recovery results.

4. We will next take up the contention that the admitted voluntary drunkenness of the deceased precludes a recovery. That school of jurists who consider torts as akin to crimes apply to the case of a- drunk man, as to his capacity both for negligence and for contributory negligence, the ancient maxim that drunkenness is no *175excuse for crime. The other school, although they do not base their theories of tort on the criminal law, just as uniformly hold the drunk man responsible for his conduct under a given state of circumstances as if he were sober. Irrespective of the various reasons given, all courts now hold that the drunk man, so far as his own conduct is concerned, is to be considered, in all matters of volition, judgment, caution, and generál mental state, just as if he were sober. The state of mind producéd by intoxication will be disregarded in viewing his actions, and he will be judged as if he possessed his normal capacities.' The physical state produced by drunkenness is, however, a condition that enters in as one of the circumstances in determining the negligence of the respective parties to the transaction. Also, in determining the negligence of the other party to the transaction, not only the impaired physical condition, but'also the vitiated mental state of the drunk man, if known to the other party, and not his normal state of mind and body, are to be considered. The maxim volenti non fit injuria is as applicable to a drunk man as to a sober man. Wherever, on the transaction as it occurred, a sober man could not recover, on account of his contributory negligence in having acted imprudently or rashly or in failing to use care to avoid injurj'-, the drunk man will likewise be precluded. As against himself, the acts of a drunk man will afford the same concurrence with the negligence of the opposite party creating the juridie cause of his injury as if he were sober; and to the same extent, his acts may so intervene as to interpose a proximate cause between the defendant’s negligence and the injurious result, and this may make the defendant’s wrong juridically remote. For instance, in the recent case of Seaboard Air-Line Ry. v. Smith, 3 Ga. App. 1 (59 S. E. 199), this ■court held that the conduct of a drunk man, in walking down the railroad track three miles to the place where he was killed by a train, interposed such a proximate cause between his death and the negligence of the company in putting him off the train drunk, as to render that wrong of the company juridically remote. These generalizations are deduced by logical necessity from such a large number of reported cases and text-books as to render a full citation tedious. Out of the large number that might be cited, see the following: Central R. Co. v. Phinazee, 93 Ga. 488 (3), (21 S. E. 66); Parish v. W. & A. R. Co., 102 Ga. 291 (29 S. E. 715, 40 L. R. A. *176364); Georgia Southern & Fla. Ry. Co. v. George, 92 Ga. 765 (19 S. E. 813); Clay v. Macon & Birmingham R. Co., 111 Ga. 839 (36 S. E. 233); Macon D. & S. R. Co. v. Moore, 125 Ga. 810, (54 S. E. 700); Forrest v. Georgia R. Co., 128 Ga. 77 (57 S. E. 98); Berry v. Northeastern R. Co., 72 Ga. 137; Southwestern R. Co. v. Hankerson, 61 Ga. 114; South Carolina R. Co. v. Nix, 68 Ga. 584; Central R. Co. v. Glass, 60 Ga. 442; Seymour v. Town of Lake, 66 Wis. 651 (29 N. W. 554); Fitzgerald v. Weston, 52 Wis. 354 (9 N. W. 13); Smith v. R. Co., 114 N. C. 728 (19 S. E. 863, 25 L. R. A. 287); Kean v. B. & O. R. Co., 61 Md. 154; L. C. & S. R. Co. v. Sullivan, 81 Ky. 634 (50 Am. R. 186); Werner v. Citizens R. Co., 81 Mo. 368; Cassidy v. Stockbridge, 21 Vt. 391; Stroud v. Ry. Co., 67 Mich. 380 (34 N. E. 712); Little Rock R. Co. v. Parkhurst, 36 Ark. 371; Bradley v. R. Co., 8 Daly (N. Y.), 289; Jagg. Torts, 165, 166; Cool. Torts (3d ed.), 192; Whart. Neg.. §§37, 196, 340, 341, 494.

5. We will now apply the principles above stated more specifically to the case at bar. If the defendants had reason to anticipate the presence of persons in their barroom, they were under' the duty, toward such as were either expressly or impliedly invited there, to use ordinary care and diligence to see that the premises were safe, and toward licensees to use such diligence (not exceeding ordinary care and diligence) as the particular circumstances required in anticipating the likelihood of their coming, and, after-they came and their presence was known, to use ordinary care not to injure them by anything done upon the premises, and not to expose them to other peril. The jury, under the facts alleged, would be authorized to find that the defendants might reasonabty have anticipated that the deceased and other persons would come into the saloon and within range of the counter; and likewise that, by ordinary foresight and prudence, they should have anticipated,, after they actually saw the deceased in the bar, that he in his-drunken condition might stumble against, lean upon, catch hold of, or otherwise come into casual contact with the counter. If the jury should find that a reasonably prudent man, under these circumstances, would have apprehended the danger in which the deceased was thus placed, then the duty of using ordinary care to thwart that danger immediately devolved upon them. If the presence of the deceased was actually known, or, if not known, should! *177have been anticipated under the circumstances, and the defendant did not take the care required to avert the threatened danger, negligence is established. The question as to whether the condition of the counter presented a hidden peril, so imminent as to require warning to the deceased in his condition and under the surrounding circumstances, is likewise a jury question. If negligence in the respects indicated should be found by the jury, it would likewise be for them to determine whether that negligence alone or in connection with acts of the deceased was the proximate cause of the injury. If the conduct of the deceased in stumbling against or in catching hold of the counter was not negligent, but was casual and innocent, or was an accident unmixed with negligence, the defendant’s wrong would, in a juridcal view, be the sole responsible cause. If the acts of the deceased were in some wise negligent, but were not so much so as to amount to a failure to exercise ordinary care, the jury would have the right to compare the negligence of one party with the negligence of the other and to apportion the damages by diminishing the recovery. If the injury resulted solely, from the negligence of the deceased, or from negligence on his part amounting to a failure to exercise ordinary care, or if, by the exercise of ordinary care and diligence, he could have prevented injury from the defendant’s negligence, or if he put the counter to a use not reasonably to be anticipated, the plaintiff can not recover. In determining the negligence of the defendant the- circumstance that the deceased was drunk, and his condition, mental and physical, so far as disclosed to the defendant, or so far as under the circumstances the defendant reasonably should have known, are to be considered. As to the conduct of the deceased, his drunkenness is no excuse for any failure on his part to use all the judgment, knowledge, care, and discretion which would have been required of him if he were sober. A part of this sober man’s knowledge which he was called upon to exercise was a realization of the fact that he was drunk (this is not a bull, but a legal nicety), and that, being drunk, his physical and mental powers and faculties were impaired. It was his duty to conduct himself while in the saloon just as a sober man would have done if he had been in that physical condition as a result of illness or other innocent cause. If his stumbling was caused by physical weakness, though drunken weakness, and not from drunken misjudgment or *178drunken lack of care, and, having stumbled, he acted as a reasonably prudent sober man in his physical condition would have acted, the fact of his intoxication will not make him guilty of contributory negligence. We can not say, as a matter of law, that it was not natural, prudent, .and reasonably to be anticipated, that one who had casually stumbled, fallen, or otherwise come into contact with a bar-counter, should lean against, catch hold of it, or pull up by it. We have heard that one reason why bar-counters are made in the style they are said to be made is that customers in places where such counters are found frequently feel a desire to lean against, catch hold of, or pull up by something, and the bar-counter .is so made as to accommodate them in these particulars as well as in others. The petition was not so perfect as it might have been, but enough was alleged to pass general demurrer (which in this State is more limited in scope than in most jurisdictions), and to make a case for decision by the jury. Therefore the judgment sustaining the demurrer is. • Reversed.