The prevailing opinion in this case holds that the defendant, Ferguson, was without negligence in connection with the killing of plaintiff's son, Richard Jones, and then indulges in a prolonged dissertation, admittedly obiter, devoted to a discussion of contributory negligence and the doctrine of the last clear chance, principally concerned with an attack, more or less violent, upon the original opinion in this case. As I was chiefly responsible for that opinion, having in fact been the author of it, perhaps, I may be pardoned for attempting to defend it for I still have an abiding faith in its correctness.
It is said that the statement in the original opinion to the effect that Jones' drunken condition must have been apparent to Ferguson because "he (Jones) must have walked with slow, uncertain and wavering steps across the intersection" is gratuitous because "there is no evidence in the record which authorizes such an assumption". Well, everybody concedes that Jones was drunk when struck by the Ferguson car. This includes all the lawyers on both sides, the trial judge and all three of the judges of this Court. Let us glance at the record in an effort to find some justification for the assumption that Jones was obviously drunk. The accident happened at five-thirty in the morning and Jones, in an unconscious condition, was conveyed to the Charity Hospital. When he regained consciousness he was asked by the police to give an account of the accident. His reply was "I had been drinking pretty heavy all night and was under the influence of liquor * * * and that is all that I know of the accident". The hospital record shows that Jones, after the sobering effect of the fatal accident, was under the influence of liquor "alcoholism". The trial judge remarked that "the evidence shows overwhelmingly that the negro who was killed was drunk * * *". Here we have a poor drunken negro in the throes of impending dissolution, walking "in the valley of the shadow of death", who blames no one for his predicament, makes no self-exculpating statement, but with his soul burdened by the contemplation of the night's debauch seeks only the relief of the confessional and in expiation unbosoms himself by saying, "I had been drinking pretty heavy all night". What stronger evidence could be produced than that which fell from the quivering lips of this humble soul, who disregards all pain and suffering incident to his mortal wound, and gives no explanation of the accident except such as is involved in his self accusing confession of drunkenness. How did it happen? Why did it happen? Who is to blame? The answer is, "I had been *Page 176 drinking pretty heavy all night". Poor Jones, he would have the world he is soon to leave know of his last great transgression for his burden is greater than he can bear.
If it be conceded that any drunken man staggers, it is a presumption juris et de jure that Jones was staggering. It may be that some drunken men do not stagger, perhaps, it can be proven that they do not, but they are in the class of the three-legged woman and the two-headed calf. Staggering is one of the symptoms of drunkenness and if the record did nothing more than prove that Jones was drunk, I would say that if he attempted to walk he would stagger. This is the view apparently entertained by the Psalmist, for in speaking of the experience of those who "go down to the sea in ships", he says: "They reel to and fro, and stagger like a drunken man, and are at their wit's end." — Psalms CVII-27.
One of the major prophets declares "The earth shall reel to and fro like a drunkard * * *". — Isaiah XXIV-20.
In the lamentations of Job, we find: "They grope in the dark without light, and he maketh them to stagger like a drunken man." — Job XII-25.
So that as long ago as Moses or Solomon, both of whom are credited with the authorship of the Book of Job, and the "Gospel according to Isaiah" and the "sweet singer of Israel", the fact that a drunken man staggers had passed into a proverb. That it has ever since been one of the most conspicuous manifestations of complete intoxication is the well-nigh universal conviction. Without any empirical knowledge on the subject, I feel as did Solomon, Moses, Isaiah and the author of the Psalms of David that it is axiomatic that a drunken man staggers.
*Page 288I respectfully dissent.