that case goods were consigned in New York, to be delivered to Epstein & Wannbacher, at Savannah, and shipped by the Ocean Steamship Company. On arrival they were placed on the wharf of the steamship company. The freight and wharfage had been paid, and nothing remained to be done to change the actual possession from the carrier to the consignee, except to remove the goods. It was shown that it was the custom of the carrier to deliver goods so placed, when the freight and wharfage were paid, without requiring the bills of lading. The consignees sold the goods to Ehrlich, and exhibited to the purchaser the bills of lading, but executed no assignment of such bills. They delivered to him the receipted freight and wharfage bills, and also an order on the carrier for the goods, and Ehrlich paid the agreed price. On exhibition of the order to the carrier, a part of the goods were delivered and carried away. On returning for the remainder, it was found that the consignor, in New York, had notified the carrier not to deliver the goods to the consignee. The carrier, acting under the notice, refused to make further delivery of the goods; and the question was, were the consignors in time? After citing the provisions of the Code above referred to, Chief Justice Bleckley, delivering the opinion of the court, said: "Under these provisions, nothing defeats the right of stoppage but actual possession in the vendee, or bona fide assignment of the bill of lading. The actual possession of the goods, not removed from the wharf, was certainly never in [the consignees], and what they did not have they could not confer on their vendees. * * * As the consignors were not too late relatively to the consignees, they were not too late as to purchasers from the consignees who had not obtained actual possession. * If these bills had been assigned, that would have been equivalent to an actual delivery of the goods. The law recognizes no substitute for such assignment. This right is regulated by law, and is terminated or defeated only in the way which the law recognizes." It is not necessary, for a proper decision of the question which arises in the present case, to add anything to this adjudication, but an examination will show that the same principles are ruled and adhered to in very many adjudicated cases emanating from other jurisdictions. In the case of Calahan v. Babcock, 21 Ohio St. 281, the supreme court of Ohio ruled: "The right of stoppage in transitu is regarded with favor, and the ingrafting of further restrictions upon the rule governing it is not warranted by public policy. The right of stoppage in transitu is extinguished only by the actual and complete delivery of the goods consigned, to the vendee, or to some agent of and for him." Again, in 37 U. S. App. 268, 16 C. C. A. 232, and 69 Fed. 302, in the case of McElwee v. Lumber Co., the circuit court of appeals ruled: "No subsale during transit will de

*

feat the right unless the bill of lading be transferred." In the case of Loeb v. Peters, 63 Ala. 243, the supreme court of Alabama ruled: "The right of stoppage by the seller is lost, when, before it is exercised, the purchaser has sold the goods. and indorsed the bill of lading, to a subpurchaser for value in good faith." To the same effect, see Becker v. Hallgarten, 86 N. Y. 167, and a large number of cases cited in note 4 to section 2495, 5 Lawson, Rights, Rem. & Prac. The claim of the plaintiffs in error in this case is that the sale made to them by the consignee, and the subsequent recognition of such sale by the carrier, and the agreement on its part to reship the goods, were such a delivery as vested in them title to the goods, free from the right of stoppage in transitu. It must be remembered, however, that nothing will defeat this right, except actual possession of the goods by the consignee, or an assignment of the bill of lading, which is a symbolic delivery of the property. Neither of these things was done. Cunningham never did have possession of the goods. The bill of lading was never assigned by him to plaintiffs in error. It cannot be doubted, under the facts which appear in the record, that Branan Bros. purchased the goods in good faith from Cunningham, the consignee; but it cannot be insisted that by such purchase they obtained any better title than Cunningham, the consignee, had when the goods were delivered to the carrier, in Danville, Va. The legal effect of such delivery was to vest the title in Cunningham, and it so remained, but the title which he held was subject to the right of the vendor to stop the goods before actual delivery. He could convey to the purchaser from him no more than he had, and therefore Branan Bros., taking Cunningham's title, took the tobacco subject to the right of the vendor to stop it so long as it remained in the hands of the carrier. Holbrook v. Vose, 6 Bosw. 76. If it be said that the goods were not in the hands of the carrier for delivery to the consignee, the reply is that as long as the company, in any capacity, except as agent of the consignee, has control of the goods,-whether carrier or warehouseman, the vendor's right is not terminated; for, as long as anything remains to be done in order to complete a delivery to the consignee, that long the right of stoppage in transitu endures. 4 Elliott, R. R. p. 2395, and note 3, making reference to a large number of adjudicated cases. There had been no actual delivery of the goods either to the consignee or Branan Bros. Under the authority of the Meador Case, supra, the delivery to the latter was constructive, not actual. Without actual delivery, or the legal symbol of it, the purchaser could not defeat the right. Subject to this right, the purchas er changed the destination, to which change the carrier assented, but while in its hands as carrier, before the goods had been started on their new destination, the right to stop

was exercised; and so long as they remained in the possession of the carrier, and it had control over them, the right existed in the original vendor, as against the consignee, who had never had them, and a purchaser from them who bought subject to the right.

In our judgment, the court committed no error in the charge of which complaint was made. The verdict is in accordance with the law and evidence, and the court committed no error in overruling the motion for a new trial. Judgment affirmed. All the justices concurring.

(107 Ga. 754)

KING v. CENTRAL OF GEORGIA RY. CO. (Supreme Court of Georgia. June 1, 1899.) CARRIERS-INJURY TO PASSENGER-NEGLIGENCE.

Where, in an action against a railway company for personal injuries occasioned by falling into a railroad cut at night from a public street immediately adjacent to, and running parallel with, the cut, the only thing alleged against the defendant as negligence is its failure to place a guard rail or light at the place in question,-it not being one to which sections 2220 and 2221 of the Civil Code are applicable, or one at which, under the facts alleged, the company, relatively to the plaintiff, was under a duty of erecting a guard rail or placing a light, there is no error in sustaining a demurrer to the plaintiff's petition.

(Syllabus by the Court.)

Error from superior court, Wilkinson county; J. C. Hart, Judge.

Action by J. C. King against the Central of Georgia Railway Company. Judgment for defendant on demurrer, and plaintiff brings error. Affirmed.

Mercer & Mercer and F. Chambers, for plaintiff in error. Lawton & Cunningham, for defendant in error.

LITTLE, J. The plaintiff in error instituted an action against the Central of Georgia Railway Company to recover damages for personal injuries, making substantially the fol lowing allegations: He became a passenger on the train of the defendant at Milledgeville for the purpose of being carried to Savannah, Ga., and arrived at Gordon, a station on defendant's railroad, in the evening; and, having to remain over until 12:15 the next day in order to take the train for Savannah, he went to a hotel in the town of Gordon. That, after night, desiring to go to a particular store in the town, he made inquiries as to the route, and was directed by a gentleman at the hotel to go to the warehouse across the railroad tracks of the defendant, 'from where he could easily reach the store which he sought. That at the warehouse there was a light. Acting on this information, he started in the direction of the warehouse, expecting to cross the railroad track,— not knowing that the track was in a cut, nor of the existence of a brick wall abutting the street, but before reaching the track he unknowingly, and without fault or negligence

on his part, stepped from a brick wall about five or six feet in height; falling that distance to the ground below, in which were the tracks of the railroad company. The fall occasioned him serious and permanent injuries. That, at the point on the right of way of the defendant where the injury was received, the tracks are in a cut, on the northern side of which was built a brick wall extending along a public street which ran parallel with the right of way for several hundred feet, the top of which was on a level with the street in front of the hotel from where petitioner started. That im mediately in front of the hotel, and just at the street, steps were built by the defendant for the use of the public for the purpose of ingress and egress to and from the railroad tracks and warehouse, and this was the usual route traveled by pedestrians. Petitioner did not know of the existence of these steps, nor of the brick wall, and supposed that the ground was level from the hotel to the warehouse, and believed that he was traveling the usual route taken by persons in going from the hotel to the warehouse. That the night was very dark, and he did not discover the wall from which he fell until he had stepped over it. He alleges that the erection and maintenance of the wall and of the steps without protecting the same by a guard or railing or light at night is gross negligence, and that the injury to plaintiff was the result of gross carelessness and negligence on the part of defendant. He alleges that he was injured without any fault or negligence of his own; that he in no wise contributed to the injury, but that the same was caused entirely by the negligence of the defendant in failing to provide suitable guard rails or lights by which he would have been able to discover the wall and cut. He then fully sets out the details of his injury, and alleges his damages to be the sum of $5,000. Subsequently plaintiff amended his petition by alleging that his injuries occurred without fault on his part, but that the same were caused entirely by the negligence of the defendant in building, maintaining, and holding out for the use of pedestrians the said steps or approach to and through its right of way, and in failing to provide suitable guard rails at the point where the said steps enter the cut, extending a few yards on each side of the steps, which would have prevented petitioner from falling; that the defendant was further guilty of carelessness and negligence in not providing lights at the point where the steps enter the cut, by which he would have been able to have seen the steps, and have avoided falling over the wall. He further shows that he was a stranger in the town, and unacquainted with the topography of the land; that he was bona fide and honestly following the walk or roadway pointed out to him, and keeping in said walk or roadway as best he could; it was after dark, and he could not see clearly, and the fact that the walk led directly to the steps caused him to believe that he was in a safe place, and the

fact that the walk terminated abruptly at the steps would have been made evident to him had there been a light there, or a guard rail at the end of the walk or roadway to keep him from going over said wall. To this petition the defendant filed a general demurrer, which on the hearing was sustained, and the petition dismissed. To the judgment sustaining the demurrer, plaintiff in error excepted.

Fairly construed, the petition seeks to recover because the defendant did not erect guard rails along the cut within which its railroad tracks were placed, and in not exhibiting lights, so that the steps which had been placed conveniently for ingress and egress to the right of way and warehouse of the defendant company might be seen by persons desiring to use the same. In order to determine whether the petition sets forth a cause of action against the defendant, it is necessary to ascertain whether the defendant owed any duty to the plaintiff, under the allegations set forth; for, in the absence of an obligation to perform any duty to the plaintiff, no negligence on the part of the defendant could exist, of which the plaintiff had a right to complain. It cannot be said that the defendant owed any duty to the plaintiff as a passenger, under the allegations which he nakes. It is true that the plaintiff went into the car of the defendant at the city of Milledgeville to be carried to Savannah, and while at the station and on the car of the defendant for the purpose of being so transported the relation of carrier and passenger existed. But on arrival at the town of Gordon, where the passenger had to remain several hours in order to make connection with the train for Savannah, he was safely delivered at the station in Gordon, and voluntarily left the premises of the railroad company and went to the hotel to be entertained; and it could hardly be claimed that until he again entered the car for the purpose of being carried to Savannah, or at least came upon the premises of the defendant for the purpose of boarding the car, he could be considered as a passenger. If it were the purpose of the plaintiff to hold the defendant company responsible for his safety as a passenger, he should have remained at the station, where he could have been looked after by the officers or agents of the company. By voluntarily leaving its premises, he, at least for the time being, severed the relation of carrier and passenger which prior to that time had existed between them. When a passenger has actually left the premises of the company, he ceases to be a passenger. 2 Am. & Eng. Enc. Law, 745; 4 Elliott, R. R. § 1592; Railroad Co. v. Moore, 101 Ga. 684, 28 S. E. 1000; Railroad Co. v. Richmond, 98 Ga. 495, 25 S. E. 565. Elliott, in his treatise on the Law of Railroads (volume 4, § 1592), says that the relation of carrier and passenger does not terminate until the passenger has alighted from the train, and left the place where passengers are discharged. In note 2 of the

same section a number of cases are cited to support the proposition that where a passenger leaves the train, and voluntarily walks along the track, the relation of carrier and passenger ceases. It must therefore be held, under the allegations made in the petition, that when the plaintiff in error alighted in the town of Gordon, left the premises of the defendant company, and went to a hotel, the relation by the defendant as a carrier ceased as to him, and that it could only be resumed when he again entered the station ground for the purpose of taking the car for Savannah. If, then, the defendant owed any duty to the plaintiff during the interval, it was that which it owed to the general public. As one of the public, and without any relation to the further prosecution of his journey, the plaintiff, while at the hotel, formed the desire to visit a certain store in the town, and in a locality with which he was not acquainted. For the purpose of reaching this store, he was directed to a path or walk which led across the right of way of the defendant company; and he claims that because the right of way was not protected by hand rails, nor lighted, he fell from a brick wall erected by the company for the protection of its premises. If the defendant company owed to the plaintiff, as one of the public, the duty of placing near the steps leading into its grounds hand rails, or lighting its right of way at night, then, under the allegations he makes, the action could be maintained. It is not, however, an open question in this state that a railroad company is not required to fence in or place guards along its road, where there may be cuts or embankments, notwithstanding a public road may run parallel to such railroad. In the case of Collier v. Railroad Co., 76 Ga. 611, an action was instituted to recover damages from the Georgia Railroad because at a certain point in the city of Atlanta a street or highway ran alongside a cut or excavation within which the railroad was located, and the plaintiff, while driving upon the road, was thrown into the cut, demolishing the buggy, injuring the harness, and hurting the plaintiff. The petition in that case alleged the negligence of the company to have been in its failure to erect guards or railings along the cut, and that the injuries were without the fault or negligence of the plaintiff. The court ruled that the omission to fence in, or place guards along, the railroad, where there were cuts or embankments, was not negligence, as there was no law which imposed a duty or obligation on the company to do so. Again, in the case of Railroad Co. v. Rogers, 30 S. E. 805, this court held, "There is no statute of this state requiring the company to inclose its tracks, nor any provision of the common law making it its duty to do so." See, also, Campbell v. Railroad Co., 50 Conn. 128.

We are cited by plaintiff in error to sections 2220, 2221, of the Civil Code as authority that the railroad company should have protected

the public by lights or by hand rails near the steps which led into the cut where the railroad tracks and warehouse were situated. A reference to these sections, however, will show that their provisions are applicable to the crossing of public roads or private ways by railroads. Indeed, in the case of Railroad Co. v. Rogers, supra, this court held that these provisions were only so applicable. The plaintiff in his petition alleges that immediately in front of the hotel, and just at the street, steps were built by the defendant corporation for the use of the public for the purpose of ingress and egress to and from the railroad tracks and the warehouse, and that this was the usual route traveled by pedestrians. Under this allegation, this walk can neither be held to be a public road, nor a private way, in contemplation of the sections of the Code cited supra. It is alleged that these steps were for the purpose of ingress and egress to and from the railroad tracks and the warehouse. While it is alleged that the steps were for the use of the public, we are bound to infer, from the language used, that it was to that part of the public visiting the railroad tracks and warehouse for transaction of business with the railroad company, for it could hardly be supposed that the railroad company would make a means of ingress and egress to its warehouse for the general public with whom it had no business. If it be true, as alleged in the petition, that the steps were built by the railroad company for the use of the public for the purpose of ingress and egress to and from the railroad tracks and the warehouse, then it would seem that the doctrine invoked by counsel for plaintiff in error (that of invitation) could not be made applicable under the facts alleged. That doctrine is, if the owner or occupant of lands, by any enticement, allurement, or inducement, causes others to come upon the same, he owes a duty to such persons to use reasonable care to see that the premises are safe for that purpose, and is liable for injuries caused by the violation of such duty to one who is free from contributory negligence. 3 Elliott, R. R. § 1249. On this question of invitation the supreme judicial court of Massachusetts, in the case of Plummer v. Dill, 156 Mass. 426, 31 N. E. 128, says: "To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business in which the occupant is engaged, or which he permits to be carried on there. There must at least be some mutuality of interest in the subject to which the visitor's business relates, although the particular thing which is the subject of the visit may not be for the benefit of the occupant." In this case the plaintiff in error, confessedly, did not seek to go upon the track nor to the warehouse of the defendant on business, but, following directions, he sought to reach the warehouse as being a point near the store which he desired to visit; and his claim that he went upon the premises of the

defendant by invitation is not sound, in law, under the allegations which he makes. Besides, the plaintiff in error, even if an invitation had been extended, did not use the steps by which the invitation was extended. Unfortunately for him, he wandered from the path which led to the steps, and failed to accept the invitation, if one had been made by the erection of the steps. What we have said as to absence of any law which requires a railroad company to fence its right of way or premises applies in full force as to its duty in lighting such right of way and premises at night. There is neither at the common law nor by our statute any such requirement. It was held in the case of Railroad Co. v. Sullivan, 32 Ohio St. 152, that the legislature, in the exercise of the police power, might constitutionally require railroad companies to light such portions of their railways as were within a city or incorporated village. In the ab sence of any such statutory requirement in this state, there is no duty resting upon a railroad company so to do.

For the reasons given, we are of the opinion that the defendant company owed no duty to the plaintiff to place guard rails where, as he alleges, he received the injury by falling from the wall, nor to light its right of way at the place where the injury was received; and the judgment of the court below sustaining the demurrer to the plaintiff's petition is affirmed. All the justices concurring.

(108 Ga. 788)

EAST ATLANTA LAND CO. v. HOUSER. (Supreme Court of Georgia. July 19, 1899.)

APPEAL-REVIEW.

1. The instructions to the jury requested by the defendant and refused by the court were, in substance, fully covered by the charge of the court.

2. The evidence was sufficient to authorize the verdict rendered.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action between the East Atlanta Land Company and M. S. Houser. From the judgment the land company brings error.. Affirmed.

Payne & Tye, for plaintiff in error. Dorsey, Brewster & Howell and Hugh M. Dorsey, for defendant in error.

number of witnesses disproving the facts she testified to; testifying to statements made by her contradictory of the facts alleged in her affidavit, and showing that she was unworthy of any credit whatever, on account of general bad character. Keller v. State, 31 S. E. 92, 102 Ga. 507, 515; Railway Co. v. McIntire, 29 S. E. 766, 103 Ga. 568; O'Neil v. State, 30 S. E. 843, 104 Ga. 538.

2. There was sufficient evidence on the trial of the case to sustain the verdict of the jury, finding the defendant guilty of murder.

1. When a motion for a new trial in a criminal case is based on the disqualification of a juror, in that he was not fair and impartial, because, before he qualified, the juror had formed and expressed an opinion that the movant was guilty of the offense with which he was charged, and the evidence as to such disqualification before the trial judge was conflicting, this court will not reverse the finding unless such evidence is so overwhelming as to show that the judge did not properly exercise the discretion with which the law invests him.

2. The question as to whether the jury will or will not recommend to mercy a defendant whom they have found guilty on the trial of a capital case is for the jury alone. The right to recommend is not restricted by any statutory provisions; but when, in charging the provisions of the statute on this subject, the judge tells the jury that they may recommend if in their judgment they think they are justified in so doing, and that it is for them to say whether all the circumstances in the case warrant them in making such a recommendation, but adds that the jury are not limited or circumscribed in any respect, and that the law prescribes no rule for the exercise of their discretion, such charge is, under previous rulings of this court, not cause for a new trial.

3. Where the facts of the case show that no element of manslaughter of either grade was involved in the homicide, the law relating to manslaughter could not properly have been given in charge to the jury.

4. The charge in relation to the weight to be given to the defendant's statement was not er

ror.

5. The verdict was in accord with the law, and supported by the evidence in the case.

(Syllabus by the Court.)

Error from superior court, Bartow county; A. W. Fite, Judge.

Bud Hackett was convicted of crime, and brings error. Affirmed.

Thos. W. Milner, for plaintiff in error. Sam. P. Maddox, Sol. Gen., and J. M. Terrell, Atty. Gen., for the State.

LITTLE, J. 1. It is complained in the motion for a new trial that Baker, a member of the jury which rendered the verdict, had previous to the trial heard a part of the testimony of the witnesses on oath, and had formed an opinion that the movant was guilty of murder, and expressed the opinion that he ought to be hung, and that at the time Baker was accepted as a juror his mind was not perfectly impartial between the state and the accused, notwithstanding he qualified on his voir dire. In support of this ground of the motion the movant introduced the affidavits of Milam and Bright. The former deposed that, in a conversation with Baker and Bright some time prior to the trial, he heard Baker say that he would not be drawn on the jury, and he thought, from all he knew, that Hackett ought to be hung. Affiant thinks that Baker said that he had not heard any of the testimony, but that he would not be taken as a Juror, because he lived near the place where the homicide was committed. Affiant Bright deposed: That in March, prior to the trial, and after the arrest of the plaintiff in error, affiant, Milam, and Baker were together near Cartersville, and were talking about the Hackett case. That Baker remarked there was no use to draw any persons on the jury who lived near Stilesboro, as he thought they had all formed an opinion. He said that he knew he had, and that he believed Hackett ought to be hung; that he did not want to sit as a juror on the case. In that conversation Baker said that he had heard the sworn evidence, and in a conversation with Baker the next day the latter said that he had heard evidence on oath, and had formed and expressed his opinion; that they could not make him serve as a juror on the case. These affidavits were accompanied by an affidavit from Hackett, and also his counsel, that they had no knowledge that Baker was under disqualification at the time he qualified as a juror, that they did not know anything of the facts detailed by these witnesses, but that Baker was accepted as a juror on the faith that he was fair and impartial, and had never formed and expressed an opinion. The state read in evidence an affidavit of Baker, which, in substance, after referring to the contents of the affidavits of Bright and Milam, admits that he had a conversation with these affiants, and in that conversation he perhaps did say that, from common rumor and general talk, Hackett ought to be hung; that the statement was made on the general talk in the neighborhood where Baker lived. He positively denies that he had formed an opinion from having heard any of the evidence, and alleges that he had heard no evidence under oath until he was sworn as a juror; that at the time he qualified as a juror he was entirely free from prejudice, and not the least disposed to convict the plaintiff in error unless the evidence authorized it; that his mind and feelings were in such a condition that he could fairly and impartially pass upon the evidence, and be