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the statutes of England, to use the language, would establish its character as such, as of this act [act of 1778), “were heretofore a part of the common law of this state, in force and use,' no satisfactory opinion even apart from and in the absence of the can be given; but the alternative of this decisions referred to: “If a question arise sentence is susceptible of specification. The concerning the existence of a general cus. expressions are, ‘or so much of the said stat. tom, it is to be tried by the justices, beutes, etc., as are not destructive of, re- cause every general custom is a part of pugnant to, or inconsistent with the free the common law.” 9 Bacon, Abr. 551; Bro. dom and independence of this state and the Trial, pl. 143; Hayward v. Kinsey, 12 Mod. form of government.' In other words, all 573. the statutes of England contemplated in this We have no statutes changing the comact are in force which are not inconsistent mon-law rule, except as indicated below. with the principles and the form of the gov- To make this clear, it is necessary that we ernment. The statutes contemplated by the briefly set forth the early statutes of North act were those

passed previously Carolina and of this state, forbidding the to the 4th year of Jac. I., when the charter pursuit of common avocations on Sunday, to the colony of Virginia was granted, which and the service of process on that day, and included what was afterwards called North the provisions of our Code thereon. Carolina."

The North Carolina act of the year 1741 To these should be added statutes passed (chapter 14, § 2) reads: "That all and every afterwards up to the Revolution, when the person and persons whatsoever shall, on colonies were specially named. Shute v. the Lord's day, commonly called Sunday, Harder, 1 Yerg. 5-8, 24 Am. Dec. 427. In a carefully apply themselves to the duties of note appended by Mr. Justice Cooper, form- religion and piety; and that no tradesman, erly a member of this court, to the case of artificer, planter, laborer, or other person Glasgow v. Smith, supra, we are furnished whatsoever, shall, upon the land or water, with a list of English statutes which have do or exercise any labor, business, or work been held in force in this state. 1 Overt. of their ordinary callings (works of neces169. In the case of State v. Miller, supra, sity and charity only excepted), nor emthe opinion is expressed by Mr. Justice ploy themselves either in hunting, fishing Freeman arguendo that our Code of 1858 or fowling, nor use any game, sport, or play, repealed all English statutes previously in

on the Lord's day aforesaid, or any part force here, as well as all prior acts of our thereof, upon pain that every person so ofown legislature, and that of North Caro- | fending, being of the age of fourteen years lina, with certain exceptions stated in § 41, and upwards, shall forfeit and pay the sum of that body of laws. It is unnecessary to of 10 shillings proclamation money." deal with the proposition here as to the The foregoing


subseEnglish statutes, because the learned justice quently re-enacted in 1803 (chapter 47), and conceded that although the English statutes were later carried into our Code in § 1723 were thus repealed as statutes, yet the rules ( (Shannon's Code, $ 3029), and § 1724 or principles contained in them remained (

(Shannon's Code, § 3031), except the inas principles of our common law. What junction to “apply themselves to the duties was said in Box v. Lanier, 112 Tenn. 393, of religion and piety." 417, 64 L.R.A. 458, 79 S. W. 1042, by Mr. The North Carolina act on the subject Chief Justice Beard, on the same subject, of executing process on Sunday was Acts in approving State v. Miller, must be under-1777, chap. 8, $ 6: “It shall not be lawful stood with the same qualification set down for any sheriff, or other officer, to execute in the case last named. Of course, where any writ or other process upon a Sunday, the Code contains anything contrary to a or upon any person attending his duty at common-law rule, whether expressed in an a muster of the militia, or any election, ancient act of Parliament or in the decision

or any person summoned to attend of a court or judge, the Code provision pre- as a witness, or a juror; and all such servvails.

ice of process is hereby declared illegal and The common-law rule as to Sunday has void, unless the same be issued against any been expressly recognized in this state in person or persons for treason, felony, riot, the case of Styles v. Harrison, 99 Tenn. 128, rescous, breach of the peace, or upon an 63 Am. St. Rep. 824, 41 S. W. 333, in which escape out of prison or custody, and such a judgment against Styles, fixing a fine process shall be executed at any time or upon him, and purporting to authorize his place.” Nich. & Car. p. 665. confinement in the workhouse, was held This was reproduced in our Code, § 2902 void because rendered on Sunday. Moreover, (

(Shannon's Code, § 4623), to this extent: the unbroken custom of this state for more “Actions may be abated by plea of the dethan one hundred years, setting apart and fendant in the following cases: (1) Where treating Sunday as a nonjudicial day,' the process is issued or served on Sunday,




except in the cases prescribed in $$ 4529– The great weight of authority, however, 4533."

is that a judgment cannot be rendered on The sections last cited forbid the issuance Sunday, nor any judicial act performed of civil process on Sunday, except in certain thereon. Charging the jury is a high juspecified cases.

dicial function, and it cannot be lawfully Criminal process: “Any process, warrant exercised on Sunday. We so determine, not or precept authorized to be issued by any only in obedience to law, but with deep satof the judges, justices of the peace, or isfaction as well, since Sunday is one of the clerks of the court in any criminal prose most useful institutions we possess. Aside cution on behalf of the state may be issued from its religious aspects, it is a noble at any time and made returnable at any police regulation, greatly tending to preday of the term.” Code, $ 5031 (Shannon's serve and increase the public health, afCode, $ 6991).

fording, as it does, a stated time for rest Section 5033 (Shannon's Code, $ 6993): from labor, and a means of physical and “Arrests by officers for public offenses may mental recuperation. On those who also rebe made on any day at any time.”

gard and use it as a religious institution it Section 5034 (Shannon's Code, § 6994): bestows an additional benefit. When the “Arrests by private persons for felony may laws protecting this institution are disrebe made on any day and at any time.” garded by our trial judges, we can only re

Section 4128 (Shannon's Code, § 5940) : verse their judgments, and remand their “He (a justice of the peace) is authorized, cases for another trial, and that course will however, to try any cause that may be be followed in the present case. brought before him at any time, and at any Such action on the part of the trial judge place, within the county, unless expressly does not fall within the protection of Acts prohibited by some positive provision of this 1911, chap. 32, concerning the duty of apCode."

pellate courts to overlook mere irregulariThis language is perhaps sufficiently ties and technical objections. To hold broad to enable a justice of the peace to try court on a day not permitted by law is as a case on Sunday; at least, a criminal case; fatal as performing the same act at a place but we are not sure of this. As the question other than that prescribed by law. does not arise in the present case, we do not Reversed and remanded. 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 Sun

NEW YORK COURT OF APPEALS. day. Certain it is there is no authority to justify any judicial officer higher than a

CORNELIUS DORR, JR., Respt., justice of the peace to perform an act of the kind. It may be that the preservation

LEHIGH VALLEY RAILROAD COMof the public peace would sometimes require

PANY, Appt. justices of the peace to try and commit persons brought before them on Sunday; but, (211 N. Y. 369, 105 N. E. 652.) as stated, as to all other judicial officers the common law remains practically un- Carrier injury to passenger through changed by our Code and statutes.

emergency brake. We are referred, by the learned assistant

1. A railroad company is liable for inattorney general in his brief, to sundry jury to a passenger by the sudden applicacases wherein it is held that a verdict may ing a traveler at a highway crossing if it

tion of the emergency brake to avoid strikbe lawfully rendered on Sunday. The de

was negligent in failing to warn him or to cided weight of authority seems to favor observe his danger in time to avoid the acthis contention. Some of the cases place cident without resort to the emergency this rule on the ground that the reception brake. of a verdict is merely a ministerial act, Same negligence of traveler effect. and others on the ground that it is a work 2. The negligence of a person in peril of necessity or charity in the way of reliev- on a high way crossing, which requires the ing the jury from confinement, and per. application of the emergency brake to the mitting them to go their way and employ train, does not relieve the carrier from liaSunday in such manner as may seem to Note. Sudden stopping of train in an them enjoyable or beneficial. Parsons v.

emergency as negligence toward pasLindsay, 3 L.R.A. 658, and note 41 Kan.

senger. 336, 13 Am. St. Rep. 290, 21 Pac. 227) ; Henderson y. Reynolds, 7 L.R.A. 327, and note from injury to passengers, see note to Mc

As to the presumption of negligence (84 Ga. 159, 10 S. E. 734); State v. Keatine, Ginn v. New Orleans R. & Light Co. 13 39 L.R.A. (X.S.) 844, and note (130 La. L.R.A. (N.S.) 601. Particular attention is 434, 58 So. 139).

called to subdivision 3, d, of this note on

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bility for consequent injury to a passenger recover damages for personal injuries alif the necessity of resort to such brake was leged to have been caused by defendant's due to its own negligence.

negligence. Affirmed. Same reliance on traveler's avoid. The facts are stated in the opinion. ing danger.

Messrs. Kenefick, Cooke, Mitchell, & 3. A railroad company cannot avoid lia

Bass, for appellant: bility for injury to a passenger by the ap

There is proof that the train came to a plication of the emergency brake to avoid sudden stop with a violent jolt, but there collision with a traveler on a highway crossing on the theory that it might assume

is no proof of any accident, and therefore that he would leave the track in time to es- no basis for the application of the rule of cape injury, if he was manifestly uncon- res ipsa loquitur. scious of the approach of the train.

Moore, Carr. p. 774; Griffen v. Manice,

166 N. Y. 188, 52 L.R.A. 922, 82 Am. St. Rep. (June 2, 1914.)

630, 59 N. E. 925, 9 Am. Neg. Rep. 336;

Benedick v. Potts, 88 Md. 52, 41 L.R.A. 478, A PPEAL by defendant from an order of 40 Atl. 1067, 4 Am. Neg. Rep. 484; Robin

the Appellate Division of the Supreme son v. Consolidated Gas Co. 194 N. Y. 37, Court, Fourth Department, reversing a judg. 28 L.R.A.(N.S.) 586, 86 N. E. 805; Nelson ment of a Trial Term for Onondaga County v. Lehigh Valley R. Co. 25 App. Div. 535, 50 granting a nonsuit in an action brought to N. Y. Supp. 63, 4 Am. Neg. Rep. 523; Needsudden start, stops, jerks, jolts, and curves. , by the sudden application of the brake just

As to the liability for injuries to passen- after the train had started, to save another ger inside car from sudden starting or stop passenger, who, in attempting to board the ping of car or train, see note to Ottinger v. train, fell and was in danger of going under Detroit United R. Co. 34 L.R.A. (N.S.) 225. the wheels, in the absence of any knowledge

The present note is concerned merely with on the part of one who stopped the train, the question whether actionable negligence of the position of the person in the car who may be predicated on the sudden stopping of was injured by the stop. a train in an emergency, including the ef- A street car company is not liable for fect upon that question of any antecedent an injury resulting from the sudden stopnegligence on the carrier's part in creating ping of a car in order to avoid a collision the emergency: The note, therefore, ex- with a wagon which has been suddenly cludes cases where, though the injury may driven across the track without fault on have been immediately caused by the sud- the part of the company. Cleveland City R. den stopping of the train in an emergency, Co. v. Osburn, 66 Ohio St. 45, 63 N. E. 604, the charge of negligence does not rest upon 11 Am. Neg. Rep. 626. that act, but upon some other act or negli- So, the sudden increase in the speed of gence; e. g., the failure to furnish a passen- an electric car while crossing over the track ger a seat, or the starting of the train be- of a steam railroad, in order to avoid being fore the passenger was seated.

hit by a train on such road, is not negliA carrier is not liable for injuries to a gence. Corkhill v. Camden & Suburban R. passenger resulting from the sudden stop- Co. 69 N. J. L. 97, 54 Atl. 522, 13 Ani. Neg. ping of a train in an emergency not due to Rep. 563. It is stated that there was no the carrier's negligence.

want of care in either conductor or motorThe only negligent act alleged in Todd v. man in attempting the crossing, but that Missouri P. R. Co. 126 Mo. App. 684, 105 every reasonable precaution was taken and S. W. 671, was in suddenly stopping the no warning was given that a train was comtrain on which the passenger was riding, ing. It is further stated that as to the with unusual violence, to avert the peril of conduct of the motorman in turning on full a collision with an approaching freight power when confronted with the imminent train. It was held that there could be no danger of a collision, his act evidenced comnegligence in doing this, and therefore the plete presence of mind and the exercise of passenger could not recover.

the highest degree of care. Recovery for A carrier is not liable for injuries caused injuries by the lurch of the car, caused by by the sudden stoppage of a train through the increased speed, was therefore denied. the application of the air brake to avoid An instruction to the jury to the effect a collision when the train ran upon a side that a verdict must be found for the plaintrack through an open switch. Yaeger v. tiff in an action against the railway comSouthern California R. Co. 5 Cal. Unrep. pany for personal injuries unless it were 870, 51 Pac. 190. It was left to the jury found that the checking of the train was to say whether or not the leaving of the the result of some unforeseen or unavoidable switch open was in itself negligence, or accident beyond the control of the carrier's whether the carrier was at fault in leaving agents was held to correctly state the law it open.

in Coudy v. St. Louis, I. M. & S. R. Co. 85 In Stewart v. Central Vermont R. Co. 86 Mo. 79. Vt. 398, 44 L.R.A.(N.S.) 433, 85 Atl. 745, Sudden stopping in the operation of street a carrier was held not liable for injury to cars is a more necessary and usual incident a passenger who had not yet reached a seat I than in the operation of steam or electric ham v. Interborough Rapid Transit Co. 48, 234; Cleveland v. New Jersey S. B. Co. 125 Misc. 522, 95 N. Y. Supp. 561; Ayers v. N. Y. 299, 26 N. E. 327, 9 Am. Neg. Cas Rochester R. Co. 156 N. Y. 104, 50 N. E. 960, 579; Ayers v. Rochester R. Co. 156 N. Y. 4 Am. Neg. Rep. 446.

104, 50 N. E. 960, 4 Am. Neg. Rep. 446; The material facts in this case are en- McDonnell v. New York C. & H. R. R. Co. tirely undisputed. No possible construc- 35 App. Div. 147, 54 N. Y. Supp. 747, 5 tion of these facts can justify the inference Am. Neg. Rep. 220; Kelly v. Metropolitan of negligence upon the part of the defend- Street R. Co. 89 App. Div. 159, 85 N. Y. ant.

Supp. 842; McDonough v. 3d Ave. R. Co. Conway v. Brooklyn Heights R. Co. 82 95 App. Div. 311, 88 N. Y. Supp. 609; GanApp. Div. 516, 81 N. Y. Supp. 878; Cleve- guzza v. Anchor Line, 97 App. Div. 352, 89 land v. New Jersey S. B. Co. 68 N. Y. 306; N. Y. Supp. 1049. Endres v. International R. Co. 129 App. Div. If there was no antecedent negligence on 785, 114 N. Y. Supp. 631; Deyo v. New defendant's part which created or contribYork C. R. Co. 34 N. Y. 11, 88 Am. Dec. uted to create the emergency which neces418; Dougan v. Champlain Transp. Co. 56 sitated the application of the brakes, the N. Y. 1; Loftus v. Union Ferry Co. 84 N. defendant is not liable, notwithstanding Y. 455, 38 Am. Rep. 533, 5 Am. Neg. Cas.' the alleged injury to the plaintiff. railways not on the streets of a city. The, of the pilot of the engine, whereupon the mere fact that such a car has stopped sud- emergency brake was used, causing the endenly is not negligence, and the carrier is tire train to lurch backward and recoil with not liable therefor where the stopping is to unusual force and violence. It will be seen avoid collision.

that the carrier was placed in a position of Thus, in Timms v. Old Colony Street R. Co. conflicting duties,--that to the passenger 183 Mass. 193, 66 N. E. 797, an action for and that to the boy. In discussing the ques. personal injuries from being thrown from tion the court says that the duty of railroad the rear platform of an electric street car, companies to safely carry and deliver their upon the car being slackened very suddenly, passengers is paramount to all others, and it is stated that “there is nothing in the evi- that it was not the intention of the legisdence to show that there was any defect in lature in the statute above referred to, to the car or in the condition of the rails, and modify or abrogate this duty in favor of jerks in the motion of street cars are not trespassers. Continuing it is stated: “We unusual. As to the apparent sudden stop- are of the opinion, and hold, that the preping, there is nothing to show that it was cautions prescribed should not be observed, not caused by some obstacle appearing sud- when to do so would imminently imperil denly in front, such as a horse and wagon or the lives or limbs of passengers and ema person on foot, attempting to cross the ployees on the train. The object of the stattrack a short distance ahead.” This lan- ute is primarily to protect Luman life, and guage is quoted with approval in McGann to construe it otherwise than here done v. Boston Elev. R. Co. 199 Mass. 446, 18 would in many cases defeat that object. L.R.A. (N.S.) 506, 127 Am. St. Rep. 509, But less than imminent danger of serious 85 N. E. 570. Citing these cases, the court bodily injury or death to those on the train in Craig v. Boston Elev. R. Co. 207 Mass. will not excuse observance of the precau548, 93 N. E. 575, an action for injuries al- tions, especially when the life of one on the leged to have been received by reason of the road is involved. In other words, the probjerking and sudden starting of the closed ability of slight injuries to passengers and electric car upon which the plaintiff was employees, or even serious injuries growing about to take his seat, states that if the out of unusual positions which they may constant stopping and starting were to at the time occupy, will not excuse observavoid collision with persons or carriages ance of the statute for the protection of crossing ahead of the car, or because of the life of a trespasser.

Humanity cars ahead of it, there was no negligence on and public policy require that the duties of the part of the motorman.

railroad companies to their passengers and A statute involved in Southern R. Co. v. to persons upon their roads be reconciled Brooks, 125 Tenn. 260, 143 S. W. 62, 1 N. as far as possible to do so. No hard and C. C. A. 252, made it the duty of a railroad | fast rule can be made applicable to all cases. company, upon discovering a person, animal, Each case where conflict presents itself or other obstruction upon the road, to must be determined upon its own particular sound the alarm whistle, put down the facts. Where compliance with any particubrakes, and employ every possible means to lar provision of the statute, under attending stop the train and prevent an accident; and conditions and environments, such as the provided that upon failure to observe these speed of the train, a steep descending grade, precautions, the company should be liable a trestle or bridge, or other circumstances for all damages. In the case at bar the of peculiar danger, will imperil the lives train of the carrier was eing brought to a or limbs of passengers with reasonable cerstop at a station, and was running at about tainty, it should not be done. But where 2 miles an hour, when a boy suddenly ap. I the place of the impending collision is level, peared upon the track some 10 feet ahead ! or the speed of the train reasonably slow, Cleveland City R. Co. v. Osborn, 66 Ohio, App. Div. 265, 55 N. Y. Supp. 308; MaverSt. 45, 63 N. E. 604, 11 Am. Neg. Rep. 626; | ick v. 8th Ave. R. Co. 36 N. Y. 378, 5 Am. Augusta R. & Electric Co. v. Lyle, 4 Ga. Neg. Cas. 93; Coddington v. Brooklyn CrossApp. 113, 60 S. E. 1075.

town R. Co. 102 N. Y. 66, 5 N. E. 797; Messrs. Thomson, Woods, & Woods, Levine v. Brooklyn, Q. C. & Suburban R. for respondent:

Co. 134 App. Div. 606, 119 N. Y. Supp. 315; Defendant was bound to exercise all the Palmer v. Delaware & H. Canal Co. 120 N. care and skill which human prudence and Y. 170, 17 Am. St. Rep. 629, 24 N. E. 302; foresight could suggest; this care extends

Keegan v. 3d Ave. R. Co. 34 App. Div. 297, to all measures necessary and proper

to secure the safety of the train and pas. in 165 N. Y. 622, 59 N. E. 1124; Loudoun

54 N. Y. Supp. 391, affirmed without opinion sengers, as well as the management of the

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

988. Utess v. Erie R. Co. 204 N. Y. 324, 97 N. E. 722, Ann. Cas. 1913D, 46; Bowen v.

If the defendant had used that degree of New York C. R. Co. 18 N. Y. 408, 72 Am. care and skill in the management and operDec. 529; Brown v. New York C. R. Co. 34 ation of the train which the law required N. Y. 404; Zimmer v. 3d Ave. R. Co. 36' of a carrier towards its passengers, the inor other conditions exist from which no, that it was the duty of the carrier to act great danger to passengers will ordinari- so as to avoid danger to its passengers, and ly follow, or can be anticipated with reason- not to create a new source of perii. able certainty, usual conditions being con- In making emergency stops, the engineer sidered, the statute must be observed; es- is not bound to anticipate that a passenger pecially in favor of human life. And in the will be in a place of peril. event of a collision in the case first stated Thus, the engineer of a freight train conthere will be no liability for injuries done taining cattle, the shippers of which are persons or property upon the road, and riding in the caboose, who discovers while in the latter there will be none to passengers between stations a fire in one of the cars, upon the train. Neither the common law is justified in bringing the train to a stop nor the statute requires impossibilities of as soon as is consistent with safety to the railroad companies, or makes them liable passengers while in the caboose, and his use for damages for acts which they are re- of the speediest means to accomplish that quired by law to do. Their agents in cases purpose, although it necessarily results in of this kind are compelled to determine their more or less severe jolting, cannot be reduty, and to decide between the conflicting garded as such negligence as to charge the interest of passengers and trespassers in railway company with liability for injuries stantly and without reflection, --in many resulting to a passenger standing on the cases a most difficult thing to do; and when platform of a caboose, of whose presence in this discretion is exercised upon reasonable that place he had no knowledge. Chicago, grounds and in good faith, it must be con- R. I. & P. R. Co. v. James, Kan. - 100 sidered, and is entitled to much weight in Pac. 641. The emergency stop was used indetermining whether there was negligence, stead of the service stop, and the time thereand consequent liability, upon the part of by saved being slight, it was argued that the company."

the more gradual method would have anThe question has sometimes assumed the swered the purpose as well as the abrupt form of what is an emergency which calls one that was employed, and that the lurch for an emergency stop.

of the caboose that caused his fall was due The fact that a passenger on a street car, to the unnecessarily sudden application of who has given the signal to stop, has got the brake, which therefore constituted acdown on the running board of the car, ready tionable negligence. It was further claimed to alight, does not justify an emergency stop in this case that the manner of announcing for fear she may step down. Sheppard v. the fire by the conductor of the train caused New York City R. Co. 56 Misc. 639, 107 N. the passenger great fear, so that he ran out Y. Supp. 553.

upon the platform and was in this position The fact that a conductor in charge of a of peril; but it was held as a matter of law street car had been assaulted and stabbed that there was no negligence in making the by a negro passenger and was bleeding pro- announcement as it was made. fusely, as a result of which there was con- But if the emergency is created through siderable confusion on the car, does not the negligence of the carrier, it is liable for jusitfy such a sudden stoppage of the train such injuries. Dorr v. LEHIGH VALLEY R. as to increase the hazard of the passengers. Co. Willis v. St. Joseph R. Light, H. & P. Co. So the cases cited above, holding that there 111 Mo. App. 580, 86 S. W. 567. It is stated j is no liability for a sudden stop in an emerthat although there was a necessity for gency not created by the carrier's negligence, stopping the cars, it should have been ac- are at least implied authority for the propocomplished in a reasonable, prudent, and sition that there is a liability in case of an speedy manner, and not with such violence emergency created by the carrier's neglias to increase the hazard of the passengers; I gence.

W. A. E.

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