860 | Ga. Ct. App. | Sep 28, 1908
Lead Opinion
(After stating the facts as above.)
It must be kept in mind throughout this opinion that this cause of action arose in North Carolina, and the substantive rights of the parties are to be measured by the laws of that State. Thus, viewed, we find no error in the charge of the court as to the effect of the plaintiff’s intoxication, so far as the question of contributory negligence is concerned. In that State, it seems, the employee can recover from the employer for the negligence of a fellow servant, subject to the defense of contributory negligence, on the same terms as if the injured employee were a third person, on the premises by invitation or under other rightful circumstances. As to these things, each party owes to the other the duty of exercising ordinary care. That State and our own have the same rule as to the effect of a person’s intoxication, in the determination of the quantum of care expected of him. He must judge and act with the same skill and caution as if he were a sober person. Compare Rollestone v. Cassirer, 3 Ga. App. 161 (59 S.E. 442" court="Ga. Ct. App." date_filed="1907-11-27" href="https://app.midpage.ai/document/rollestone-v-cassirer--co-5602744?utm_source=webapp" opinion_id="5602744">59 S. E. 442), with Smith v. Railroad Co., 114 N.C. 728" court="N.C." date_filed="1894-02-15" href="https://app.midpage.ai/document/smith-v-norfolk--southern-railroad-6693551?utm_source=webapp" opinion_id="6693551">114 N. C. 728 (19 S.E. 863" court="N.C." date_filed="1894-02-05" href="https://app.midpage.ai/document/smith-v--r-r-3657062?utm_source=webapp" opinion_id="3657062">19 S. E. 863, 25 L. R. A. 287).
It is our opinion, however, that the court erred in not allowing the defendant to plead and prove the North Carolina statute by which it is made a misdemeanor for any person to be in charge of a locomotive engine while intoxicated. Its relevancy to the case inheres in the question as to the defendant’s negligence, rather than in the question as to the plaintiff’s contributory negligence. The principal negligent act upon which the plaintiff relies for a recovery is, that an engineer of the defendant company put the engine in motion without causing the bell to be rung. To show that he was one of the persons to whom this duty of ringing the bell was due, the plaintiff alleged that at the time of the injury he was an employee, conducting himself within the line of his duty.Some such allegation was necessary on his part; for, although the rule required the .ringing of the bell, and although a failure to
In the most excellent brief filed for the defendant in error, and in the concise and pointed argument of his counsel, the insistence is made that any error in the rejection of this statute and of the rules of the company upon the subject of intoxication is harmless, because the court admitted to the jury all the evidence offered upon the subject of the plaintiff’s intoxication, and their verdict was, in effect, a finding that he was sober. Not so; for the jury might have found that, although the plaintiff was intoxicated, he managed to conduct himself on the particular occasion just as a sober, prudent man would have done, and that, despite his drunkenness, he did no negligent act; and in this event, under the charge of the court, he would have been entitled to recover. The statute of North Carolina, however, does not forbid merely the intoxicated engineer, who is not capable of exercising ordinary care and diligence, from taking charge of a locomotive; but, in wider terms, makes it a misdemeanor for any intoxicated person to do so. Under this statute intoxication, not conduct, is the criterion..
Rehearing
ON MOTION FOR REHEARING.
Counsel in the petition for rehearing make the point that in the original decision we considered the case as if the negligence were solely that of the engineer who moved the engine. They insist that the negligence consisted in the fireman’s failure to ring the bell. The petition is so worded as to rely upon the negligence of both these employees. Of course, the thing that hurt the plaintiff was the fact that the engineer moved the engine suddenly and before the usual warning had been given. The failure to ring the bell could not have hurt the plaintiff, but it did tend to relieve his own action, in getting on the engine at that particular moment, from an imputation of contributory negligence. We concede that it is true, as counsel insist, that the rule alleged to have been violated reads, “The engine bell must be rung before the engine is moved,” and not “the engine must not be moved until the bell is rung,” but it is our opinion that the one thing, of necessity, connotes the other.
Counsel insist that the fireman who participated in the alleged negligence had actual knowledge of the plaintiff’s presence at the time of his injury, and that through the fireman’s actual knowledge the engineer had constructive knowledge, and that in light of this knowledge of his presence, actual to the one servant and constructive to the other, they owed him ordinary care, even though lie was a trespasser. In our opinion, it is seldom that constructive knowledge of a trespasser’s presence is sufficient to raise a duty toward him; generally actual knowledge is required; no such constructive knowledge as is here asserted is sufficient. Besides, even if ordinary care and diligence ever becomes the true standard of the measure of duty owed a trespasser, it is to be remembered that the same conduct may fulfil this standard as to a person in the situation of a trespasser, and not fulfil it as to a person differently situated. As to how the quantum of ordinary diligence varies in cases of trespassers, see DeVane v. A. B. & A. R. Co., ante, 136 (60 S.E. 1079" court="Ga. Ct. App." date_filed="1908-03-30" href="https://app.midpage.ai/document/devane-v-atlanta-birmingham--atlantic-railroad-5602997?utm_source=webapp" opinion_id="5602997">60 S. E. 1079); Charleston Ry. Co. v. Johnson, 1 Ga. App. 441