"It is an obvious fact that many occupations, I wouldn't say," the positive testimony of the as, for example, a powder mill operator, a struc- foreman in charge of the section crew, who tural iron worker, a diver, a blaster, a track- was sworn in behalf of the plaintiff, and the walker, necessarily subject those who follow engineer in charge of the train which caused them to great dangers. When, therefore, a man the injury, sworn in behalf of the defendant, contracts for such employment, he knows and takes on himself the risks and dangers incident was to the effect that it was cloudy, misty, to such dangerous work. His assumption of foggy, and smoky, and that the engineer those obvious and unavoidable risks is in the couldn't have seen the car and the plaintiff very nature of things part of his employment. a distance of more than 50 feet. The cloudy, It follows, therefore, that the employer violates misty, foggy, and smoky condition existing at no legal duty to the employé in failing to pro- the time the injury occurred prevented the tect him from dangers which cannot be escaped engineer from seeing the plaintiff in time to by any one doing such work. It is ob- avoid the accident. When the engine came vious that even where a railroad operates its out of the cut and around the curve onto the trains, and moves its switch drafts in a proper straight stretch, it was running at the usual and careful manner, trackwalkers and repairmen are necessarily subjected to great risks. rate of speed of about 35 or 40 miles per Their very occupation is one of constant peril. hour, but, due to its close proximity to the Indeed, it follows from the nature of such em- hand car at the time its presence was disployment that the duty of self-preservation has covered, it was impossible to stop the train to rest on them, for no adequate protection, oth-in time to prevent striking the hand car, aler than self-protection, can be afforded them. And such has been the reasonable holding of the law. * * Indeed, in thus making selfprotection the substantial safeguard of track walkers and section men, the law is reasonable and just, for no other dependable safeguard can be afforded their perilous work in the practical operation of railroads." And in the case of Hinz v. Chicago, B. & N. R. Co., 93 Wis. 16, 66 N. W. 718, the Supreme Court of Wisconsin held: "A section hand, whose duties required him to ride over the road on a hand car, and who had been notified by the company, and of his own knowledge knew, that wild trains were frequently run over the road at a high rate of speed, assumed the risk of injury from being run into by one of these trains, running at a high rate of speed, on a foggy morning." [1, 2] Applying this principle of law to the facts adduced upon the trial of this case, we are compelled to set aside the verdict in favor of the plaintiff. As has already been stated, there is no presumption of negligence against the defendant in this case. It will be seen from the plaintiff's own testimony and that of the witnesses sworn in his behalf, as well as from the uncontradicted evidence in behalf of the defendant, the employés of the defendant in charge of its locomotive and cars which injured the plaintiff used all ordinary care and diligence to avoid the injury. The plaintiff, besides knowing that he might expect a train along this track at any time, was in point of fact specifically warned of, and saw the approach of, the train which caused his injuries in ample time to have avoided the injury by the exercise of the slightest degree of care upon his part. There is no evidence to show that the engineer in charge of the defendant's train could, in the exercise of the degree of care required by law, have known of the presence of the plaintiff on the track. According to the testimony of the plaintiff himself, it was not good daylight at the time he was injured, and while though the brakes were applied and the engineer did everything in his power, when the emergency arose, to avoid injuring the plaintiff. It follows, from what has been said, that the plaintiff was guilty of no negligence in the operation of its train. [3] It is insisted, however, that the defendant's foreman was negligent "in ordering plaintiff to remove the lever car from the track, as the train was so close to it," and that the plaintiff was injured while in the line of his duty, under the orders and in the immediate presence of the "boss" to whose orders he was subject. While it is true that a servant is bound to obey a command, when given as such, by one occupying the relation of vice principal to the master, if it pertains to the duties of the servant's employment, and does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it, still even the direct and immediate order of the master will not justify a servant in rashly exposing himself to a known and obvious danger; and if, in compliance with the command in such cases, the servant be injured, he cannot recover of the master therefor. Whiters v. Mallory S. S. Co., 23 Ga. App. 47, 97 S. E. 453; International Cotton Mills v. Webb, 22 Ga. App. 309, 96 S. E. 16. Thus granting, for the sake of the argument, that the foreman was negligent in ordering the plaintiff to remove the lever car at the time and place that he did, the order was negligent only by reason of the close proximity of the approaching train, and this fact was, according to the plaintiff's own testimony, known to and plainly observable by him. In the case of Charleston, etc., Ry. Co. v. Sylvester, supra, this court held that under the federal Employers' Liability Act the employe, not only assumes the ordinary risks and hazards of his occupation, but also those defects (100 S.E.) are plainly observable, although due to the master's negligence. And in Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 34 Sup. Ct. 229, 58 L. Ed. 521, the United States Supreme Court held that an employé "is not to be treated as assuming the risks arising from a defect that is attributable to the employer's negligence, until the employé becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. [Italics ours.] In order to charge an employé with the assumption of risk attributable to a defect due to the employer's negligence it must appear, not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it." See, also, Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 Fed. 1, 149 C. C. A. 211. Thus it is impossible to hold, under the facts as disclosed by the record in this case, that the plaintiff did not know and appreciate the obvious danger incident to remaining upon the track in the face of an on-coming locomotive, whose gleaming headlight was staring him in the face. We are compelled to say that he assumed the risk which occa sioned his injury. While constrained to hold as we do, we at the same time feel that the purpose and conduct of the plaintiff in continuing his desperate attempt to remove the hand car from the track, in order to prevent a collision such as might imperil many passengers and others, was both fearless and highly commendable; but the law, unfortunately for the plaintiff, places upon him, and not upon the company, the risk incident to his courageous act. Judgment reversed. WADE, C. J., and LUKE, J., concur. Error from Superior Court, Butts County; W. E. H. Searcy, Jr., Judge. Charlie White was convicted of voluntary manslaughter, a new trial was denied, and he brings error. Reversed. H. M. Fletcher, of Jackson, for plaintiff in error. W. E. Watkins, of Jackson, for the State. BLOODWORTH, J. Charlie White was indicted for murder and convicted of volun tary manslaughter, and, complaining of the brought his case to this court for review. overruling of the motion for new trial, has The trial judge charged the jury in part as follows: "Justifiable homicide, so far as the definition is applicable to this case, is the killing of a human being in self-defense or defense of habitation or property, against one who manifestly to commit a felony on either. If a person kill intends or endeavors by violence or surprise another in his defense, it must appear that the danger was so urgent and pressing, at the time of the killing, that, in order to save his own life, the killing of the other was absolutely necessary; and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the mortal blow was given. I charge you that the expression 'felony,' as used here, means an offense for which the offender, if convicted, would be liable to be punished by death or imprisonment in penitentiary. The law provides that justifia (Court of Appeals of Georgia, Division No. 2. ble homicide is the killing of a human being in July 22, 1919.) (Syllabus by the Court.) CRIMINAL LAW 823(1)-HOMICIDE 101 -STATUTES - INSTRUCTIONS-NEW TRIALCURE OF Error. "The law embraced in section 73 of the Penal Code of 1910 does not qualify or limit the law of justifiable homicide as laid down in sections 70 and 71 of that Code. The section first mentioned applies exclusively to cases of self-defense from danger to life arising during the progress of a fight wherein both parties had been at fault. The other two sections are applicable when the homicide is committed in good faith to prevent the perpetration of any of the offenses mentioned in section 70, or self-defense, or in defense of habitation, property, or person, against one who manifestly intends or endeavors by violence or surprise to commit a felony on either. The bare fear of any of these offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances at the time were sufficient to excite the fears of a reasonable man, and that the party killing really acted under the influence of these fears, and not in a spirit of revenge." The first ground of the amendment to the motion for new trial complains that this charge is error for the reason hereinafter stated. In a note to this ground the trial judge says that section 73 of the Penal Code was given in charge at the request of counsel for the defendant. This being true, the defendant could not complain that section 73 was given in charge; but he can complain that it was given in such connection as to confuse "the defense of justifiable homicide under the fears of a reasonable man, based upon the provisions of the two related sections 70 and 71 of the Criminal Code, with the defense of absolute necessity to kill in order to save one's life, which is contained in section 73 of said Code," and this is the reason assigned why the charge is erroneous. Under repeated rulings of our Supreme Court, we think this point is well taken, even though in our opinion the facts demanded that section 73 be given in charge to the jury. The first headnote of the decision in Pugh v. State, 114 Ga. 16, 39 S. E. 875, is as follows: "The law embraced in section 73 of the Penal Code does not qualify or limit the law of justifiable homicide as contained in sections 70 and 71. While the law embodied in sections 70 and 71, as well as that embodied in section 73, may both be properly given in the same case, the provisions of the different sections should not be charged in such a way as to leave the impression upon the jury that they are both applicable to the same state of facts." In Franklin v. State, 146 Ga. 42, 90 S. E. 481, Mr. Justice Beck said: "It was proper in this case to give sections 70, 71, and 73 of the Penal Code in charge to the jury, but section 73 should not have been charged in such a way as to make it likely that the provisions of that section would be confused in the minds of the jury with the provisions of sections 70 and 71. It is true that the judge told the jury that the provisions of section 73 were to be kept distinct from the provisions of sections 70 and 71; but that is not sufficient. How could a layman be expected to keep the provisions of section 73 and of the other sections referred to distinct, without instructions as to the case in which the principles of section 73 are applicable? In the case of Pryer v. State, 128 Ga. 28, 57 S. E. 93, it is said: 'We would suggest that it would avoid much confu * * sion if, where it is proper to give in charge section 73 of the Penal Code, the presiding judge would give the jury some instruction as to cases in which it is applicable, instead of * charging it immediately after sections 70 and 71, without any explanation.' Section 73 is applicable only in the cases of mutual combat, as has been repeatedly ruled, and the jury ought to be so informed in appropriate instructions, or at least, the jury should be told in what cases the provisions of section 73 are applicable. Otherwise the inevitable tendency is to confuse that section with the provisions of sections 70 and 71, where all three of the sections are given. Warrick v. State, 125 Ga. 133, 141, 53 S. E. 1027." woman "It is justifiable homicide, under our law, for one to kill another who is manifestly intending or endeavoring by violence or surprise to commit a felony on his person, and this is and it is not a correct proposition of law that, true without regard to the grade of felony; when one kills another to prevent the commission of a felony on his person, the danger must be so urgent and pressing at the time of the killing that, in order to save his own life, the killing of the other was necessary. On the contrary, it is only necessary to be shown that the circumstances were sufficient to excite the fears of a reasonable man that such felony was about to be committed upon him, in order to who killed a man to prevent the rape of her justify the homicide. Otherwise, a person, or one who slew a burglar to prevent the burglary of his home, would not be justifiable. In neither of these cases was the life of the slayer involved, but in each a felony was about to be committed. A person in this state may kill another for other purposes than to save his own life, and be justified, if he do so to prevent any felony from being committed on his habitation, person, or property; his defense is complete when to a jury it appears that the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be committed, and that he killed to prevent its commission. The latter part of the charge as given applies only to cases of homicide where the parties had previously been engaged in mutual combat. Powell v. State, 101 Ga. 9 [29 S. E. 309, 65 Am. St. Rep. 277]; Stubbs v. State, 110 Ga. [916, 36 S. E. 2001. It is doubtless true that the Presiding Judge recognized these distinctions; but, inasmuch as the two principles enunciated in his charge are directly been drawn, the jury might have understood, coupled together, without a distinction having from the charge as set out in the ground of the motion, that, while it was justifiable for one to kill another to prevent the commission of time appear that the danger was so urgent and a felony on his person. it must at the same pressing at the time of the killing that it was deceased, in order to save his own life. This necessary for the slayer to take the life of the is not and has never been the law." See, also, White v. State, 147 Ga. 378 (5), 383 (5), 94 S. E. 222; Pryer v. State, 128 Ga. 28, 57 S. E. 93; Smith v. State, 119 Ga. 564, 46 S. E. 846 (3); Jordan v. State, 117 Ga. 405, 43 S. E. 747 (2); Powell v. State, 101 Ga. 11 (6), 22 (6, 7), 29 S. E. 309, 65 Am. St. Rep. 277. From the charge given in the instant case, the jury might have concluded that the provisions of sections 70 and 71 and of section 73 were applicable to the same state of facts. In Nunn v. State, 14 Ga. App. 699, 82 S. E. 58, Judge Roan says: "It is impossible to tell which portion of the charge the jury applied to the evidence when arriving at its verdict-the law as laid down by section 73, read to them by the court without comment, or the latter part of the charge, whereby the court seemingly recalled the instructions given on this section. For this rea In Ragland v. State, 111 Ga. 216, 36 S. E. son the latter portion of the court's charge, (100 S.E.) direct conflict with the letter of the law embodied in section 73 of the Penal Code, and it does not operate to modify the law as laid down in that section, any more than the law as laid down in that section modifies the latter portion of the charge. It would be well for the trial judges, in giving in charge section 73 of the Penal Code where it is applicable, to instruct the jury, in immediate connection therewith, under what circumstances it is applicable. In this way such confusion can be avoided. See Powell v. State, 101 Ga. 23, 29 S. E. 309, 65 Am. St. Rep. 277; Pugh v. State, supra; Warrick v. State, 125 Ga. 141, 53 S. E. 1027; Pryer v. State, 128 Ga. 28, 57 S. E. 93; Lightsy v. State, 2 Ga. App. 442, 58 S. E. 686; Holland v. State, 3 Ga. App. 465, 60 S. E. 205; McAllister v. State, 7 Ga. App. 541, 67 S. E. 221." Even though the judge, after giving in charge to the jury erroneous instructions, did give to the jury a correct charge, he did not withdraw the erroneous charge, or state to the jury that it was erroneous. "Where an erroneous instruction is given on a material issue, the error is not rendered harmless by a subsequent statement of the judge that he has given the correct rule in another part of his charge. He must make it plain and clear to the jury that the first instruction was incorrect and is expressly retracted, and that the subsequent statement is correct and is substituted for the incorrect one; and it must appear, therefore, that the jury could not have been misled or confused by the two inconsistent statements." Pelham Mfg. Co. v. Powell, 6 Ga. App. 309, 64 S. E. 1117 (4). See Mayor & Council of Madison v. Bearden, 22 Ga. App. 378, 96 S. E. 572, and cases cited; Central of Ga. Ry. Co. v. Deas, 22 Ga. App. 428, 96 S. E. 267. "The jury must take the whole charge as the law, and it is not for them to select one part to the exclusion of another, nor to decide whether one part cures or qualifies another, without being instructed so to do by the judge." Savannah, Florida & Western Ry. Co. v. Hatcher, 118 Ga. 273, 45 S. E. 239. and pressing at the time of the killing that, in order to save his own life, the killing of the other was absolutely necessary. In the instant case I do not see how the jury could have been so misled; for, after charging the above three Code sections (and all three were applicable), the jury were clearly and correctly instructed, several times, that, if the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be committed on him, the killing would be justifiable and the defendant should be acquitted. Immediately after the excerpt from the charge complained of the court charged as follows: "The fears of a person should be the fears of a reasonable man-one reasonably courageous, reasonably self-possessed, not those of a coward. If the circumstances were sufficient to excite the fears of a reasonable man that a felony was about to be inflicted upon him, then the killing would be presumed to be the result of such fears, and he would be justifiable. If the jury have a reasonable doubt as to wheththe fears of a reasonable man, then the killer the circumstances were sufficient to excite ing would be justifiable. The killing is not jus tifiable because one feels that he has reason to fear that he will be injured, without regard to the character of the injury some person is tended or endeavored to commit a misdemeanabout to inflict upon him. If the assailant ining of such person would be voluntary manor or a trespass only upon the person, the kill But if he intended to commit a felonious assault, then the killing would be jusslaughter. tifiable. If the circumstances are not such as to excite the fears of a reasonable man that he is in any danger at all, and when he is in no danger he shot and killed another with malice, then such killing would be murder. If the cir cumstances were sufficient to excite the fears of a reasonable man that an injury was about to be inflicted upon him less than a felony, under those circumstances such a killing would be voluntary manslaughter. When the circumstances are sufficient to excite the fears of a reasonable man that a felony is about to be inflicted upon him, and under those circumstances he kills another, then the killing would be justifiable. In order to justify the killing on the ground that the accused acted under the fears of a reasonable man that a felony was about there was real or apparent danger sufficient to to be inflicted upon him, it must appear that justify the belief that a felony was about to be inflicted upon him. If the circumstances surrounding the defendant at the time, as they appeared to him at that time, situated as he was, were sufficient to excite the fears of a reason able man that there was real or apparent danger that a felony was about to be inflicted upon him, and he acted under the influence of these fears, and not in a spirit of revenge, and killed another, then such killing would be justifiable." And the very last part of the charge is as follows: "If you do not believe he is guilty of either offense [murder or voluntary manslaughter], or have reasonable doubt of it, or if you find or that he acted under the fear of a reasonable | proceedings nugatory. See Sloan v. Fariners' man that a felony was about to be inflicted Bank, 20 Ga. App. 123, 125, 126, 127, 92 S. E. upon him, or if you have a reasonable doubt of 893, and cases cited. the guilt of the accused of either offense named, it would be your duty to acquit him, and the form of your verdict would be: 'We, the jury, find the defendant not guilty."" In my opinion, in the light of the entire charge, the excerpt from the charge complained of did not mislead the jury into thinking that, if the accused killed the deceased under the fears of a reasonable man that a felony was about to be committed upon him, the killing would nevertheless not be justifiable, unless it appeared to him that the danger was so urgent and pressing that, in order to save his own life, the killing of the other was absolutely necessary. I think the judgment should be affirmed. Error from City Court of Dawson; M. C. Edwards, Judge. Action by J. A. Horsley against J. L. McLeod and others. Demurrer to defendants' plea was sustained, and plaintiff brings error. Reversed. R. R. Marlin and Yeomans & Wilkinson, all of Dawson, for plaintiff in error. R. R. Jones, of Dawson, for defendants in error. BLOODWORTH, J. Judgment reversed. BROYLES, P. J., and STEPHENS, J., concur. (24 Ga. App. 148) (24 Ga. App. 1) HORSLEY v. McLEOD et al. (No. 10152.) (Court of Appeals of Georgia, Division No. 2. May 16, 1919.) (Syllabus by the Court.) PLEADING 354(2)—ACTION FOR BROKER'S CIENCY. NEAL v. STATE. (No. 10271.) (Court of Appeals of Georgia, Division No. 2. July 23, 1919.) (Syllabus by the Court.) CRIMINAL LAW 1172(2)—APPEAL AND ER- The court did not err in refusing to grant a new trial. Stephens, J., dissenting. Error from Superior Court, Glascock County; B. F. Walker, Judge. James Neal was convicted of violating the prohibition law, and he brings error. Affirmed. M. L. Felts, of Warrenton, for plaintiff in error. R. C. Norman, Sol. Gen., of Washington, Ga., for the State. BROYLES, P. J. The indictment contained two counts. The first count charged the defendant with the offense of manufactur Plaintiff, a real estate dealer, sued the defendants, landowners, on a plain and unambiguous written contract for commissions for selling a tract of land. Defendants admitted signing the contract, but pleaded that it was procured by fraud, and the sale made by the plaintiff, not under the written contract, but under a previous verbal one. A demurrer to the plea was filed, and the following order passed: "It is ordered and adjudged that said demurrer be, and the same is, sustained in so far as the allegations as to fraud in obtaining the contract sued upon, the same being held insufficient; but as to the allegations touching another or a verbal contract, the same is allowed." In Ware v. Ware & Harper, 20 Ga. App. 202, 92 S. E. 961, the court said: "The defendant admitted the execution of the contract which is the basis of this suit, and filed a plea of fraud in its procure-ing alcoholic liquors. The second count ment. The defendant could read and write, and there was no trick, artifice, or fraud practiced upon him which prevented him from reading the contract. The relation between the parties was that of landowner and real estate agent employed for the purpose of negotiating a sale of the land. In respect to the services to be rendered by the real estate agent, a relation of confidence existed between the owner and the agent. In respect to the compensation to be paid to the agent by the owner, the parties dealt at arm's length. There is nothing in the evidence to take this case out of the general rule that parole evidence will not be received to add to, vary, or dispute the plain and unambiguous terms of a written contract." Under this ruling the court erred in not striking the entire plea. This error rendered the further charged him with knowingly permitting apparatus for the distilling and manufacturing of intoxicating liquors to be located on his premises. He was convicted on both counts. The court instructed the jury, in substance, that if the evidence showed that such apparatus was found on premises "possessed or controlled" by the defendant, the state made a prima facie case, and that would entitle the state to a verdict in its favor unless the defendant showed that the apparatus was there without his knowledge. This charge was excepted to. Conceding, but not deciding, that this charge was erroneous, it does not require a new trial, under the facts of the case. The |