Seaboard Air-Line Railway v. Chapman , 4 Ga. App. 706 ( 1908 )

Powell, J.

(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), with Smith v. Railroad Co., 114 N. C. 728 (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 give this warning would, in a general and abstract sense, be neglect, still, unless the plaintiff was oiie of those persons for whose benefit this duty was required, the omission would not be actionable negligence as to him. “The plaintiff who has established the fact that a defendant has been guilty of doing what he ought not to-have done, or of not doing what he ought to have done, has. something further to do, in order to show a cause of action in his behalf; he must show not only that he has directly and proximately suffered injury therefrom, but also that he is so related to the duty and the neglect thereof that he has a right to complain. Therefore, although an act be negligent, it does not afford a given plaintiff a cause of action, unless it is negligent as to Mm.” Platt v. So. Photo Material Co., ante, 164 (60 S. E. 1071). It seems, sufficiently clear to justify the simple statement, without elaboration, that if the plaintiff in this case were a trespasser, and. without any invitation from the company attempted to mount the engine, and the engineer, without actual or constructive knowledge of .his presence, moved- the engine and hurt him, he could, not recover, although the bell was not rung. By alleging that he was an employee in the line of his duty when he approached the engine and attempted to mount it, the plaintiff shows a right to-be upon the premises, a right to be where he was, a right to claim, the usual warning before the engine was moved. Now, the defendant was entitled to show anything which would negative the plaintiff’s right to be where he was and would place him in the attitude of a trespasser; and it must be remembered that an employee, when not in the line of or in the discharge of some duty of his employment, stands in relation to the master and to the master’s other servants just as any other member of the general public would. Snowball v. Seaboard Ry., 130 Ga. 85 (60 S. E. 189); S., F. & W. Ry. Co. v. Flannagan, 82 Ga. 580 (10), (14 Am. St. R. 183, 9 S. E. 471). Now, if the plaintiff was intoxicated at the time of his injury and was trying to get upon the locomotive to take charge of it as engineer, he was not there in an effort to perform a-duty, but to violate the law; for to take charge of an engine while intoxicated is a crime in North Carolina. The law implies an invitation from, the master to the servant to enter and remain upon and to move about on his premises, and to handle, use, and be in range of his fools, appliances, and machinery, so far as necessary to the performance of the servant’s duty (indeed, it is out of this implied invitation, and the common-law principles regulating the duties of a landowner to invited persons upon his premises, that the courts have largely constructed that portion of our jurisprudence which relates to the duties of the master as to the servant’s safety while he is engaged in the work); but, prima facie at least, it will not be presumed that a master whose occupation is lawful invites a servant to come upon his premises or to use his instrumentalities to violate the law. Rollestone v. Cassirer, supra. If the plaintiff was intoxicated, the very moment he became so, every rule, usage, instruction, direction, or command of the master, given him while he was sober, by which he was authorized to enter upon the locomotive and to take charge of it, became immediately abrogated, and remained so until he became sober, or until the master, with knowledge of his drunkenness, gave him new authority. If he was intoxicated and came upon the company’s premises fox the purpose of violating the law, he was no longer an employee in the line of his duty, but was a mere trespasser, or quasi trespasser, and-entitled to no higher degree of care than any other person who might have attempted to climb upon the engine to violate any other criminal statute would have been. The necessary result of the court’s action was to deprive the railway company of this line, of defense.

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..

Since there is to be a new trial, we may acid that the court committed no error in excluding rule 7, referred to above, but should have admitted rule 19. This last-named rule is especially relevant in connection with the North Carolina statute on the same subject. Judgment reversed.