Rollestone v. T. Cassirer & Co.

• Docket Number: 656.
• Decision Date: 27 November 1907
• Citation: 59 S.E. 442,3 Ga.App. 161
• Parties: ROLLESTONE v. T. CASSIRER & CO.
• Court: Georgia Court of Appeals

59 S.E. 442

3 Ga.App. 161

ROLLESTONE v. T. CASSIRER & CO.

No. 656.

Court of Appeals of Georgia

November 27, 1907

Syllabus by the Court.

Usually as against the proprietor of a public place of business and in favor of those who come there to trade, the law will imply an invitation from the former to the latter to enter the premises, so as to render applicable the principles of section 3824 of the Civil Code of 1895, as follows "Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe." However, since in this state it is criminal for a barkeeper to sell intoxicating liquor to a drunk man, the law will not, in the absence of a showing of any contrary agreement or custom, or other similar reason, presume any invitation from a barkeeper to a drunk man to enter the saloon for the purpose of buying whisky.

[Ed Note.-For cases in point, see Cent. Dig. vol. 37, Negligence §§ 42-46.]

(a) A member of the general public of the class usually allowed to enter the barroom, who lawfully and peaceably goes in although not a customer actual or anticipatory at the time, does not, unless admission has been forbidden him, thereby become a trespasser, but is a licensee.

(b) The allegations in this case show the deceased to have been at least a licensee in the saloon of the defendant.

The owner or proprietor of the premises is not free from duty to a licensee. He must keep the premises free from pitfalls, mantraps, and the like.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 61.]

(a) The exact duty owing by the proprietor to the licensee is a matter determinable only by the specific circumstances of each case.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 42-46.]

(b) If the proprietor knows that a pitfall or some similar secret danger lurks in his premises, and sees a licensee about to come into contact therewith, he should give warning.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, § 65.]

(c) The duty of warning against such danger becomes the more imperative when the licensee has bad eyesight, is intoxicated, or is suffering from other infirmity known to the proprietor.

(d) Heavy articles which are apparently in stable equilibrium or which appear to be securely fastened, but which in fact are in unstable equilibrium and not fastened, may fairly be placed in the same category with pitfalls and mantraps.

The juridical or proximate cause of an injury is not necessarily the sole cause. The fact that, with the negligence of the defendant, conduct of the person injured or of a third person concurred, does not necessarily render the injury a remote consequence of such negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 69-82.]

(a) "Although an act of the plaintiff himself, intervening between the defendant's wrong and the injuries suffered, has concurred in producing the damages for which a recovery is sought, the defendant is not thereby excused, if such intervening act was the natural result of, or was naturally and reasonably induced by the antecedent act of the defendant. And the rule is the same where, though the plaintiff's act may not in strictness have been caused or induced by the defendant's act or omission, yet the latter caused or created a negligent and dangerous condition, upon which the plaintiff's act, harmless and innocent in itself, and of a nature which might have been anticipated, operated to produce the injuries received."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 76-82.]

(b) If the plaintiff's contributory conduct be negligent, a recovery is defeated only when such negligence amounts to a failure to exercise ordinary care; in other cases there is to be a comparison of the negligence of the respective parties and a diminution of the recovery. Civ. Code 1895, § 3830.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 84, 162-167.]

In viewing the conduct of a drunk man for the purpose of determining his negligence or contributory negligence, the state of mind produced by intoxication will be disregarded, and he will be judged as if the conduct were committed by him while in possession of his normal mental capacity. His physical state, though caused by drunkenness, is, however, a condition that enters in as one of the circumstances in judging the negligence of the respective parties to the transaction. In determining the negligence of a defendant for injuries received by a drunk man, both the mental and the physical condition of the latter, so far as it was known or reasonably ought to have been known to the former, are legitimate matters for consideration.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 119, 120.]

The proprietor of a barroom had therein a heavy bar counter, which was so constructed that it was top-heavy on the outer edge, and was therefore, in a state of unstable equilibrium and liable to topple as a result of any slight contact, and which ordinarily was securely fastened to the floor, but which on the occasion in question was unfastened. A drunk licensee entered the saloon and, approaching the counter, stumbled, and, to catch or steady himself, took hold of and pulled against the counter, which he supposed to be fastened as usual, but which fell upon him and killed him. Held, that the negligence of the defendant and the contributory negligence of the deceased were both questions for the jury, and that the court improperly sustained a general demurrer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 37, Negligence, §§ 277-286.]

Error from City Court of Atlanta.

Action by M. E. Rollestone against T. Cassirer & Co. From a judgment of dismissal, plaintiff brings error. Reversed.

In an action for death of plaintiff's intestate in a saloon, while intoxicated, by pulling over a heavy bar of unstable equilibrium on him, evidence of defendant's negligence and decedent's contributory negligence held for the jury.

For the negligent homicide of her husband, Mrs. Rollestone sued Cassirer & Co. on a petition which, omitting formal parts, is as follows:

"That said Cassirer & Co. were engaged on October 25 1906, and for several years prior thereto, in the saloon business at No. 97 Whitehall street, city of Atlanta, said county. That said place conducted by defendants was and is a public barroom, openly run to furnish alcoholic drinks and other goods intoxicating contained therein to the general public. That said place was a public house, and the public were invited to go and purchase the goods furnished by defendants, and that said place was run for the personal profit of and benefit to said defendants. That said place was conducted under a license granted to said defendants by the city of Atlanta, the state of Georgia, and

the United States of America, to run a barroom for public patronage at said place. That on October 25, 1906, petitioner's husband, H. A. Rollestone, went into the place of business, as aforesaid, of defendants, for the purpose of buying whisky and other merchandise sold by defendants. That at said time petitioner's husband was greatly under the influence of intoxicants, and that his condition was known to defendants and their agents in charge of said business. That he was intoxicated to that extent that he was unable to take care of himself, and his reason, judgment, discretion, and ability to know danger was entirely overthrown on account of said intoxicated condition, and that defendants and their agents in charge of said business were aware of said facts, and were put on notice of his said condition. That defendants had placed in their said place of business several weeks prior to the time aforesaid a barroom counter, so set in said place of business loosely and without being fastened to the floor or in any way to protect its falling over. That said counter was constructed of heavy wood, and was so constructed that practically the entire weight of the same was on the outside of said counter, and that said counter was constructed so that the outside of it hung over from its center of gravity. The other side of said counter was hollow and had no weight of any kind to counteract or weight against the outside and overhanging part of said counter. That said counter was constructed so that it would easily fall over. That in height it was about four feet, and its principal weight was at or about the top of said counter. That while petitioner was in said place, on the day aforesaid, he was near said counter, and in moving about on the floor of defendants' place he slipped or stumbled, and seized hold of said counter to steady himself or to raise himself up, and said counter, with all of its terrible crushing weight, fell over upon petitioner's husband, and mashed and crushed him, and broke his leg and shocked his nervous system. That on November 30, 1906, petitioner's husband died on account of the injuries received, as aforesaid, and said death was caused and produced by the injuries aforesaid, and said injuries received in defendants' place of business were the proximate cause of the death of petitioner's husband.

That petitioner is the widow of H. A. Rollestone, who was killed as aforesaid. That her said husband was at the time of his death 54 years of age, and was earning $1,200 per year. That he was in the employ of Keely Company at said annual salary, and had been employed at said place for many years, and was one of their most trusted, capable, and

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