While intoxication of the operator of an automobile is always a relevant fact bearing upon the question of negligence, it is generally held that in the absence of a statute prohibiting the operation of an automobile while intoxicated, the mere operation of an automobile while in that condition, standing alone, does not constitute actionable negligence, the reason being that if notwithstanding his intoxication the conduct of the driver measures up to the standard required by due care, intoxication alone, in the absence of acts constituting negligence in fact will not support *Page 597 the charge of negligence. In other words, in the absence of statute, voluntary intoxication is not negligence per se. Powell v. Berry, 89 So. E. R. 753; L.R.A. 1917A 306; Packard v. O'Niell, 262 Pac. R. 881; Berry on Automobiles, (6 Ed.) Secs. 167, 179.
When there exists, however, a statute expressly prohibiting the operation of an automobile while intoxicated and making such conduct a criminal misdemeanor many courts hold that a violation of the statute is negligence per se, even though the statute does not in terms declare such conduct actionable civil negligence. Wise v. Schneider (Ala.), 88 So. R. 662; Hudson v. State, 107 So. E. R. 94; Mitchell v. Churches, 206 Pac. R. 6; 36 A. L. R. 1132; Steinkrause v. Eckstein, 175 N.W. R. 988; Stewart v. Smith, 78 So. R. 724; 42 C. J. 898; 45 C. J. 714, et seq. 969; 20 Rawle C. L. 38.
In my opinion, where such a statute exists the operation of an automobile in violation thereof constitutes prima facie, but not conclusive, negligence for the purpose of determining civil liability, just as the violation of other statutory or municipal regulations constituting the "law of the road" is regarded as prima facie evidence of negligence. Such a statute is designed for the safety and protection of the public and its violation is prima facie evidence of negligence. See Hanson v. Kemmish, 208 N.W. R. 277, 45 A. L. R. 498; Berry on Automobiles (6th Ed.), Sec. 226. The driving of an automobile in violation of such a statute, standing alone and without an affirmative showing of negligence in fact, is prima facie negligent because it is an act which is expressly forbidden by statute and therefore contrary to the public policy of the State. The effect of such a statute is to declare that by the very fact of his intoxicated condition a person is incapacitated from acting as an ordinarily prudent person should act, and therefore, *Page 598 as a matter of law he is at least prima facie guilty of negligence when he operates a vehicle in that condition. If the operation of such vehicle in the prohibited condition be the proximate cause of injury it is actionable. The negligence in such a case consists not of the mere fact of intoxication but of the operation of the vehicle contrary to a law designed for the safety and protection of other travellers and contrary to the public policy of the State as evidenced by the passage of the law.
In the Georgia case of Powell v. Berry, supra, holding that mere intoxication in a person driving an automobile does not constitute actionable negligence per se in the absence of a showing of negligence in fact, there was apparently no statute prohibiting drunken driving. That case recognizes the rule, however, that if there is such a statute its violation constitutes actionable negligence.
Of course the rule that the driving of an automobile while intoxicated in violation of a statute prohibiting such conduct constitutes prima facie negligence does not abrogate or impair the doctrine of proximate cause. The negligence which consists of the operation of the vehicle in the prohibited condition must be the proximate cause of the injury complained of. Since the operation of the automobile in the prohibited condition, standing alone, is merely prima facie evidence of negligence, the defendant may show that notwithstanding his intoxication he exercised due care and was not in fact negligent. The burden of showing the latter facts, however, would be upon the defendant, and in the absence of such a showing, the plaintiff's primafacie showing of negligence consisting of a violation of the statute would stand. A conflict on the question would be for the jury to determine.
Sec. 7749, Comp. Gen Laws 1927, provides that it shall be unlawful for any person while in an intoxicated condition *Page 599 or under the influence of intoxicating liquors to such an extent as to deprive him of full possession of his normal faculties, to drive or operate an automobile over the highways of this State. Since there is some, though very slight, evidence that the defendant was intoxicated, which would be a violation of the statute and would prima facie constitute negligence and since the charge of the court embraced the proposition that the jury, before it could find for the plaintiff, must find from the preponderance of the evidence, not only that the defendant was driving the automobile while in an intoxicated condition or under the influence of intoxicating liquors, but also that the fact that the defendant was driving or operating the automobile while under the influence of intoxicating liquors was the sole proximate cause of the accident and the damage to the plaintiff flowing therefrom, the giving of the charge was without error. Taken in connection with the court's general charge upon the burden of proof and defining proximate cause, the charge complained of was not misleading.
I am, therefore, of the opinion that the judgment should be affirmed. I concur in the opinion of Mr. Justice BROWN except that portion thereof dealing with the correctness of the charge upon which my views are hereinabove discussed.
BUFORD, J., concurs.
