Wallace v. Cannon , 38 Ga. 199 ( 1868 )

Warner, J.

This was an action brought by the widow of Sylvester Cannon, an employee of the Western and Atlantic Railroad, against that road, to recover damages for killing her husband, by the negligence of another employee of the road, under the provisions of the Code. On the trial of the case in the Court below, it was insisted that the plaintiff was not entitled to recover, because her husband, at the time he was killed, was voluntarily engaged in the unlawful act of transporting Confederate soldiers and munitions of war, for the purpose of making war against the Government of the United States. If the husband of the plaintiff, at the time he was killed, and the other employees of the company, at the time of the injury, were voluntarily engaged in transporting Confederate soldiers and munitions of war upon the road, for the purpose of making war upon the Government of the United States, such voluntary engagement, on their part, was an illegal act, in violation of the Constitution of the United States, the supreme law of the land. The Court below charged the jury in relation to this point in the case, “ If you shall believe from the evidence in this case, that the deceased was voluntarily engaged in the performance of acts in violation of the Constitution of the United States when he was killed, and from that cause solely, or from the fault or negligence of the said Sylvester at the time he lost his life, then the jdaintiff is not entitled to recover. If the killing resulted solely from the fault or negligence of the defendant, or of an employee of the defendant, then the plaintiff is- entitled to recover.” This charge of the Court is excepted to, and assigned for error here.

The charge of the Court, so far as the same relates to the illegal employment of Cannon, and the other employees of the road, at the time of the injury, in view of the evidence in the record, was error. The question involved in that branch of the case was, whether the parties were voluntarily engaged, at the time of the injury, in an unlawful transaction, in violation of the Constitution and laws of the United States; -that was a distinct ground of defence against the plaintiff’s right to recover. The injury was caused by the collision of the two trains running upon the road. The evidence is, that Cannon’s train was freighted with Confederate soldiers, two or three cannon, besides horses and harness, etc. Murphy testifies, “that in 1862, the road was in the habit of carrying Confederate soldiers; there were so many soldiers, and so much freight of the Confederate Government, that a great deal of confusion was produced.” Wing, the conductor on the down train, testifies, “ that he had been carrying a load of Confederate soldiers to Chattanooga, and was returning with an empty train; that lie was ordered out by Col. Camden, the agent of the road at Chattanooga.” In view of the evidence contained in the record, as to the illegal employment of the parties at the time the alleged injury occurred, the Court, in our judgment, should have charged the jury, that if they believed, from the evidence, that, at the time Cannon was killed by the collision of the railroad trains, the railroad company and the employees of that company, (including Cannon, as well as the other employees, whose negligence caused the injury,) were voluntarily engaged in the transportation of Confederate soldiers on the road for the purpose of making war upon the Government of the United States, then the plaintiff is not entitled to recover.

There was much said, on the argument of the case, about the down freight-train running on Sunday, in violation of the statute of this State. We do not recognize the doctrine, that one offender against the law, can set-off against the plaintiff that he, too,, is a public offender, in another distinct transaction. See Mahony vs. Cook, 26 Pennsylvania R., 342; The Philadelphia, Washington and Baltimore Railroad Company vs. The Philadelphia Steam Tow-boat Company, 23 Howard’s U. S. R., 209. To bring the parties within the rule of the law applicable to such cases, they must both have been engaged in the same illegal transaction; it is such cases only, that the maxim of the law, “ In pari delicto potior est conditio defendentis et possidentis” applies. In all such cases, the rule of the law is, to leave the parties where it finds them, giving no relief, and no countenance to claims of that character; not for the benefit of the defendant, but upon grounds of public policy. Let the judgment of the Court below be reversed.