even apart from and in the absence of the decisions referred to: "If a question arise concerning the existence of a general cus. tom, it is to be tried by the justices, because every general custom is a part of the common law." 9 Bacon, Abr. 551; Bro. Trial, pl. 143; Hayward v. Kinsey, 12 Mod. 573.

Carolina."

To these should be added statutes passed afterwards up to the Revolution, when the colonies were specially named. Shute v. Harder, 1 Yerg. 5-8, 24 Am. Dec. 427. In a note appended by Mr. Justice Cooper, formerly a member of this court, to the case of Glasgow v. Smith, supra, we are furnished with a list of English statutes which have been held in force in this state. 1 Overt. 169. In the case of State v. Miller, supra, the opinion is expressed by Mr. Justice Freeman arguendo that our Code of 1858 repealed all English statutes previously in force here, as well as all prior acts of our own legislature, and that of North Carolina, with certain exceptions stated in § 41, of that body of laws. It is unnecessary to deal with the proposition here as to the English statutes, because the learned justice conceded that although the English statutes were thus repealed as statutes, yet the rules or principles contained in them remained as principles of our common law. What was said in Box v. Lanier, 112 Tenn. 393, 417, 64 L.R.A. 458, 79 S. W. 1042, by Mr. Chief Justice Beard, on the same subject, in approving State v. Miller, must be understood with the same qualification set down in the case last named. Of course, where the Code contains anything contrary to a common-law rule, whether expressed in an ancient act of Parliament or in the decision of a court or judge, the Code provision prevails.

The common-law rule as to Sunday has been expressly recognized in this state in the case of Styles v. Harrison, 99 Tenn. 128, 63 Am. St. Rep. 824, 41 S. W. 333, in which a judgment against Styles, fixing a fine upon him, and purporting to authorize his confinement in the workhouse, was held void because rendered on Sunday. Moreover, the unbroken custom of this state for more than one hundred years, setting apart and treating Sunday as a nonjudicial day,

The North Carolina act of the year 1741 (chapter 14, § 2) reads: "That all and every person and persons whatsoever shall, on the Lord's day, commonly called Sunday, carefully apply themselves to the duties of religion and piety; and that no tradesman, artificer, planter, laborer, or other person whatsoever, shall, upon the land or water, do or exercise any labor, business, or work of their ordinary callings (works of necessity and charity only excepted), nor employ themselves either in hunting, fishing or fowling, nor use any game, sport, or play, on the Lord's day aforesaid, or any part thereof, upon pain that every person so of fending, being of the age of fourteen years and upwards, shall forfeit and pay the sum of 10 shillings proclamation money."

The foregoing provisions were subsequently re-enacted in 1803 (chapter 47), and were later carried into our Code in § 1723 (Shannon's Code, § 3029), and § 1724 (Shannon's Code, § 3031), except the injunction to "apply themselves to the duties of religion and piety."

The North Carolina act on the subject of executing process on Sunday was Acts 1777, chap. 8, § 6: "It shall not be lawful for any sheriff, or other officer, to execute any writ or other process upon a Sunday, or upon any person attending his duty at a muster of the militia, or any election,

or any person summoned to attend as a witness, or a juror; and all such service of process is hereby declared illegal and void, unless the same be issued against any person or persons for treason, felony, riot, rescous, breach of the peace, or upon an escape out of prison or custody, and such process shall be executed at any time or place." Nich. & Car. p. 665.

This was reproduced in our Code, § 2902 (Shannon's Code, § 4623), to this extent: "Actions may be abated by plea of the defendant in the following cases: (1) Where the process is issued or served on Sunday,

except in the cases prescribed in §§ 45294533."

The sections last cited forbid the issuance of civil process on Sunday, except in certain specified cases.

Criminal process: "Any process, warrant or precept authorized to be issued by any of the judges, justices of the peace, or clerks of the court in any criminal prosecution on behalf of the state may be issued at any time and made returnable at any day of the term." Code, § 5031 (Shannon's Code, § 6991).

Section 5033 (Shannon's Code, § 6993): "Arrests by officers for public offenses may be made on any day at any time."

Section 5034 (Shannon's Code, § 6994): "Arrests by private persons for felony may be made on any day and at any time."

Section 4128 (Shannon's Code, § 5940): "He [a justice of the peace] is authorized, however, to try any cause that may be brought before him at any time, and at any place, within the county, unless expressly prohibited by some positive provision of this Code."

This language is perhaps sufficiently broad to enable a justice of the peace to try a case on Sunday; at least, a criminal case; but we are not sure of this. As the question does not arise in the present case, we do not determine it. However, if this language does not give the authority, there is nothing in our Code giving any authority to any judicial officer to try a case on Sunday. Certain it is there is no authority to justify any judicial officer higher than a justice of the peace to perform an act of the kind. It may be that the preservation of the public peace would sometimes require justices of the peace to try and commit persons brought before them on Sunday; but, as stated, as to all other judicial officers the common law remains practically unchanged by our Code and statutes.

We are referred, by the learned assistant attorney general in his brief, to sundry cases wherein it is held that a verdict may be lawfully rendered on Sunday. The decided weight of authority seems to favor this contention. Some of the cases place this rule on the ground that the reception of a verdict is merely a ministerial act, and others on the ground that it is a work of necessity or charity in the way of relieving the jury from confinement, and permitting them to go their way and employ Sunday in such manner as may seem to them enjoyable or beneficial. Parsons v. Lindsay, 3 L.R.A. 658, and note (41 Kan. 336, 13 Am. St. Rep. 290, 21 Pac. 227); Henderson v. Reynolds, 7 L.R.A. 327, and note (84 Ga. 159, 10 S. E. 734); State v. Keatine, 39 L.R.A. (N.S.) 844, and note (130 La. 434, 58 So. 139).

The great weight of authority, however, is that a judgment cannot be rendered on Sunday, nor any judicial act performed thereon. Charging the jury is a high judicial function, and it cannot be lawfully exercised on Sunday. We so determine, not only in obedience to law, but with deep satisfaction as well, since Sunday is one of the most useful institutions we possess. Aside from its religious aspects, it is a noble police regulation, greatly tending to preserve and increase the public health, affording, as it does, a stated time for rest from labor, and a means of physical and mental recuperation. On those who also regard and use it as a religious institution it bestows an additional benefit. When the laws protecting this institution are disregarded by our trial judges, we can only reverse their judgments, and remand their cases for another trial, and that course will be followed in the present case.

Such action on the part of the trial judge does not fall within the protection of Acts 1911, chap. 32, concerning the duty of appellate courts to overlook mere irregularities and technical objections. To hold court on a day not permitted by law is as fatal as performing the same act at a place other than that prescribed by law. Reversed and remanded.

NEW YORK COURT OF APPEALS. CORNELIUS DORR, JR., Respt.,

V.

LEHIGH VALLEY RAILROAD COMPANY, Appt.

(211 N. Y. 369, 105 N. E. 652.)

Carrier

injury to passenger through emergency brake.

1. A railroad company is liable for intion of the emergency brake to avoid strikjury to a passenger by the sudden applicaing a traveler at a highway crossing if it was negligent in failing to warn him or to observe his danger in time to avoid the accident without resort to the emergency brake. Same negligence of traveler effect. 2. The negligence of a person in peril on a highway crossing, which requires the application of the emergency brake to the train, does not relieve the carrier from liaNote. Sudden stopping of train in an emergency as negligence toward passenger.

from injury to passengers, see note to MeAs to the presumption of negligence Ginn v. New Orleans R. & Light Co. 13 L.R.A. (N.S.) 601. Particular attention is called to subdivision 3, d, of this note on

if the necessity of resort to such brake was due to its own negligence.

A

(June 2, 1914.)

PPEAL by defendant from an order of the Appellate Division of the Supreme Court, Fourth Department, reversing a judgment of a Trial Term for Onondaga County granting a nonsuit in an action brought to sudden start, stops, jerks, jolts, and curves. As to the liability for injuries to passenger inside car from sudden starting or stopping of car or train, see note to Ottinger v. Detroit United R. Co. 34 L.R.A. (N.S.) 225. The present note is concerned merely with the question whether actionable negligence may be predicated on the sudden stopping of a train in an emergency, including the effect upon that question of any antecedent negligence on the carrier's part in creating the emergency. The note, therefore, excludes cases where, though the injury may have been immediately caused by the sudden stopping of the train in an emergency, the charge of negligence does not rest upon that act, but upon some other act or negligence; e. g., the failure to furnish a passenger a seat, or the starting of the train before the passenger was seated.

A carrier is not liable for injuries to a passenger resulting from the sudden stopping of a train in an emergency not due to the carrier's negligence.

The only negligent act alleged in Todd v. Missouri P. R. Co. 126 Mo. App. 684, 105 S. W. 671, was in suddenly stopping the train on which the passenger was riding, with unusual violence, to avert the peril of a collision with an approaching freight train. It was held that there could be no negligence in doing this, and therefore the passenger could not recover.

A carrier is not liable for injuries caused by the sudden stoppage of a train through the application of the air brake to avoid a collision when the train ran upon a side track through an open switch. Yaeger v. Southern California R. Co. 5 Cal. Unrep. 870, 51 Pac. 190. It was left to the jury to say whether or not the leaving of the switch open was in itself negligence, or whether the carrier was at fault in leaving it open.

In Stewart v. Central Vermont R. Co. 86 Vt. 398, 44 L.R.A. (N.S.) 433, 85 Atl. 745, a carrier was held not liable for injury to a passenger who had not yet reached a seat

The facts are stated in the opinion. Messrs. Kenefick, Cooke, Mitchell, & Bass, for appellant:

There is proof that the train came to a sudden stop with a violent jolt, but there is no proof of any accident, and therefore no basis for the application of the rule of res ipsa loquitur.

Moore, Carr. p. 774; Griffen v. Manice, 166 N. Y. 188, 52 L.R.A. 922, 82 Am. St. Rep. 630, 59 N. E. 925, 9 Am. Neg. Rep. 336; Benedick v. Potts, 88 Md. 52, 41 L.R.A. 478, 40 Atl. 1067, 4 Am. Neg. Rep. 484; Robinson v. Consolidated Gas Co. 194 N. Y. 37, 28 L.R.A. (N.S.) 586, 86 N. E. 805; Nelson v. Lehigh Valley R. Co. 25 App. Div. 535, 50 N. Y. Supp. 63, 4 Am. Neg. Rep. 523; Needby the sudden application of the brake just after the train had started, to save another passenger, who, in attempting to board the train, fell and was in danger of going under the wheels, in the absence of any knowledge on the part of one who stopped the train, of the position of the person in the car who was injured by the stop.

A street car company is not liable for an injury resulting from the sudden stopping of a car in order to avoid a collision with a wagon which has been suddenly driven across the track without fault on the part of the company. Cleveland City R. Co. v. Osburn, 66 Ohio St. 45, 63 N. E. 604, 11 Am. Neg. Rep. 626.

So, the sudden increase in the speed of an electric car while crossing over the track of a steam railroad, in order to avoid being hit by a train on such road, is not negli gence. Corkhill v. Camden & Suburban R. Co. 69 N. J. L. 97, 54 Atl. 522, 13 Anı. Neg. Rep. 563. It is stated that there was no want of care in either conductor or motorman in attempting the crossing, but that every reasonable precaution was taken and no warning was given that a train was coming. It is further stated that as to the conduct of the motorman in turning on full power when confronted with the imminent danger of a collision, his act evidenced complete presence of mind and the exercise of the highest degree of care. Recovery for injuries by the lurch of the car, caused by the increased speed, was therefore denied.

An instruction to the jury to the effect that a verdict must be found for the plaintiff in an action against the railway company for personal injuries unless it were found that the checking of the train was the result of some unforeseen or unavoidable accident beyond the control of the carrier's agents was held to correctly state the law in Coudy v. St. Louis, I. M. & S. R. Co. 85 Mo. 79.

Sudden stopping in the operation of street cars is a more necessary and usual incident than in the operation of steam or electric

ham v. Interborough Rapid Transit Co. 48 Misc. 522, 95 N. Y. Supp. 561; Ayers v. Rochester R. Co. 156 N. Y. 104, 50 N. E. 960, 4 Am. Neg. Rep. 446.

The material facts in this case are entirely undisputed. No possible construction of these facts can justify the inference of negligence upon the part of the defend

ant.

Conway v. Brooklyn Heights R. Co. 82 App. Div. 516, 81 N. Y. Supp. 878; Cleveland v. New Jersey S. B. Co. 68 N. Y. 306; Endres v. International R. Co. 129 App. Div. 785, 114 N. Y. Supp. 631; Deyo v. New York C. R. Co. 34 N. Y. 11, 88 Am. Dec. 418; Dougan v. Champlain Transp. Co. 56 N. Y. 1; Loftus v. Union Ferry Co. 84 N. Y. 455, 38 Am. Rep. 533, 5 Am. Neg. Cas. railways not on the streets of a city. The mere fact that such a car has stopped suddenly is not negligence, and the carrier is not liable therefor where the stopping is to

avoid collision.

Thus, in Timms v. Old Colony Street R. Co. 183 Mass. 193, 66 N. E. 797, an action for personal injuries from being thrown from the rear platform of an electric street car, upon the car being slackened very suddenly, it is stated that "there is nothing in the evidence to show that there was any defect in the car or in the condition of the rails, and jerks in the motion of street cars are not unusual. As to the apparent sudden stopping, there is nothing to show that it was not caused by some obstacle appearing suddenly in front, such as a horse and wagon or a person on foot, attempting to cross the track a short distance ahead." This language is quoted with approval in McGann v. Boston Elev. R. Co. 199 Mass. 446, 18 L.R.A. (N.S.) 506, 127 Am. St. Rep. 509, 85 N. E. 570. Citing these cases, the court in Craig v. Boston Elev. R. Co. 207 Mass. 548, 93 N. E. 575, an action for injuries alleged to have been received by reason of the jerking and sudden starting of the closed electric car upon which the plaintiff was about to take his seat, states that if the constant stopping and starting were to avoid collision with persons or carriages crossing ahead of the car, or because of cars ahead of it, there was no negligence on the part of the motorman.

A statute involved in Southern R. Co. v. Brooks, 125 Tenn. 260, 143 S. W. 62, 1 N. C. C. A. 252, made it the duty of a railroad company, upon discovering a person, animal,

or

other obstruction upon the road, to sound the alarm whistle, put down the brakes, and employ every possible means to stop the train and prevent an accident; and provided that upon failure to observe these precautions, the company should be liable for all damages. In the case at bar the train of the carrier was being brought to a stop at a station, and was running at about 2 miles an hour, when a boy suddenly appeared upon the track some 10 feet ahead

1

234; Cleveland v. New Jersey S. B. Co. 125 N. Y. 299, 26 N. E. 327, 9 Am. Neg. Cas 579; Ayers v. Rochester R. Co. 156 N. Y. 104, 50 N. E. 960, 4 Am. Neg. Rep. 446; McDonnell v. New York C. & H. R. R. Co. 35 App. Div. 147, 54 N. Y. Supp. 747, 5 Am. Neg. Rep. 220; Kelly v. Metropolitan Street R. Co. 89 App. Div. 159, 85 N. Y. Supp. 842; McDonough v. 3d Ave. R. Co. 95 App. Div. 311, 88 N. Y. Supp. 609; Ganguzza v. Anchor Line, 97 App. Div. 352, 89 N. Y. Supp. 1049.

If there was no antecedent negligence on defendant's part which created or contributed to create the emergency which necessitated the application of the brakes, the defendant is not liable, notwithstanding the alleged injury to the plaintiff.

of the pilot of the engine, whereupon the emergency brake was used, causing the entire train to lurch backward and recoil with unusual force and violence. It will be seen that the carrier was placed in a position of conflicting duties, that to the passenger and that to the boy. In discussing the question the court says that the duty of railroad companies to safely carry and deliver their passengers is paramount to all others, and that it was not the intention of the legislature in the statute above referred to, to modify or abrogate this duty in favor of trespassers. Continuing it is stated: "We are of the opinion, and hold, that the precautions prescribed should not be observed, when to do so would imminently imperil the lives or limbs of passengers and employees on the train. The object of the statute is primarily to protect human life, and to construe it otherwise than here done would in many cases defeat that object. But less than imminent danger of serious bodily injury or death to those on the train will not excuse observance of the precautions, especially when the life of one on the road is involved. In other words, the probability of slight injuries to passengers and employees, or even serious injuries growing out of unusual positions which they may at the time occupy, will not excuse observance of the statute for the protection of the life of a trespasser. Humanity and public policy require that the duties of railroad companies to their passengers and to persons upon their roads be reconciled as far as possible to do so. No hard and fast rule can be made applicable to all cases. Each case where conflict presents itself must be determined upon its own particular facts. Where compliance with any particular provision of the statute, under attending conditions and environments, such as the speed of the train, a steep descending grade, a trestle or bridge, or other circumstances of peculiar danger, will imperil the lives or limbs of passengers with reasonable certainty, it should not be done. But where the place of the impending collision is level, or the speed of the train reasonably slow,

Cleveland City R. Co. v. Osborn, 66 Ohio St. 45, 63 N. E. 604, 11 Am. Neg. Rep. 626; Augusta R. & Electric Co. v. Lyle, 4 Ga. App. 113, 60 S. E. 1075.

Messrs. Thomson, Woods, & Woods, for respondent:

Defendant was bound to exercise all the care and skill which human prudence and foresight could suggest; this care extends to all measures necessary and proper to secure the safety of the train and passengers, as well as the management of the train itself.

Utess v. Erie R. Co. 204 N. Y. 324, 97 N. E. 722, Ann. Cas. 1913D, 46; Bowen v. New York C. R. Co. 18 N. Y. 408, 72 Am. Dec. 529; Brown v. New York C. R. Co. 34 N. Y. 404; Zimmer v. 3d Ave. R. Co. 36' or other conditions exist from which no great danger to passengers will ordinarily follow, or can be anticipated with reasonable certainty, usual conditions being considered, the statute must be observed; especially in favor of human life. And in the event of a collision in the case first stated there will be no liability for injuries done persons or property upon the road, and in the latter there will be none to passengers upon the train. Neither the common law nor the statute requires impossibilities of railroad companies, or makes them liable for damages for acts which they are required by law to do. Their agents in cases of this kind are compelled to determine their duty, and to decide between the conflicting interest of passengers and trespassers instantly and without reflection,-in many cases a most difficult thing to do; and when this discretion is exercised upon reasonable grounds and in good faith, it must be considered, and is entitled to much weight in determining whether there was negligence, and consequent liability, upon the part of the company."

The question has sometimes assumed the form of what is an emergency which calls for an emergency stop.

The fact that a passenger on a street car, who has given the signal to stop, has got down on the running board of the car, ready to alight, does not justify an emergency stop for fear she may step down. Sheppard v. New York City R. Co. 56 Misc. 639, 107 N. Y. Supp. 553.

The fact that a conductor in charge of a street car had been assaulted and stabbed by a negro passenger and was bleeding profusely, as a result of which there was considerable confusion on the car, does not jusitfy such a sudden stoppage of the train as to increase the hazard of the passengers. Willis v. St. Joseph R. Light, H. & P. Co. 111 Mo. App. 580, 86 S. W. 567. It is stated that although there was a necessity for stopping the cars, it should have been accomplished in a reasonable, prudent, and speedy manner, and not with such violence as to increase the hazard of the passengers;

App. Div. 265, 55 N. Y. Supp. 308; Maverick v. 8th Ave. R. Co. 36 N. Y. 378, 5 Am. Neg. Cas. 93; Coddington v. Brooklyn Crosstown R. Co. 102 N. Y. 66, 5 N. E. 797; Levine v. Brooklyn, Q. C. & Suburban R. Co. 134 App. Div. 606, 119 N. Y. Supp. 315; Palmer v. Delaware & H. Canal Co. 120 N. Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302; Keegan v. 3d Ave. R. Co. 34 App. Div. 297, in 165 N. Y. 622, 59 N. E. 1124; Loudoun 54 N. Y. Supp. 391, affirmed without opinion

v. 8th Ave. R. Co. 162 N. Y. 380, 56 N. E. 988.

If the defendant had used that degree of care and skill in the management and operation of the train which the law required of a carrier towards its passengers, the inthat it was the duty of the carrier to act so as to avoid danger to its passengers, and not to create a new source of perii.

In making emergency stops, the engineer is not bound to anticipate that a passenger will be in a place of peril.

Thus, the engineer of a freight train containing cattle, the shippers of which are riding in the caboose, who discovers while between stations a fire in one of the cars, is justified in bringing the train to a stop as soon as is consistent with safety to the passengers while in the caboose, and his use of the speediest means to accomplish that purpose, although it necessarily results in more or less severe jolting, cannot be regarded as such negligence as to charge the railway company with liability for injuries resulting to a passenger standing on the platform of a caboose, of whose presence in that place he had no knowledge. Chicago, R. I. & P. R. Co. v. James, Kan., 100 Pac. 641. The emergency stop was used instead of the service stop, and the time thereby saved being slight, it was argued that the more gradual method would have answered the purpose as well as the abrupt one that was employed, and that the lurch of the caboose that caused his fall was due to the unnecessarily sudden application of the brake, which therefore constituted actionable negligence. It was further claimed in this case that the manner of announcing the fire by the conductor of the train caused the passenger great fear, so that he ran out upon the platform and was in this position of peril; but it was held as a matter of law that there was no negligence in making the announcement as it was made.

But if the emergency is created through the negligence of the carrier, it is liable for such injuries. DORR v. LEHIGH VALLEY R. Co.

So the cases cited above, holding that there is no liability for a sudden stop in an emergency not created by the carrier's negligence, are at least implied authority for the proposition that there is a liability in case of an emergency created by the carrier's negligence. W. A. E.