#### SAMUEL COUCH *v.*GEORGE W. JONES, *Adm’r., et al.*

To work a hired slave at the business of blasting rook, in the night time, when fragments of falling rooks could not be seen, would not be taking ordinarily reasonable care of such property.

But if a hired slave of his own accord, against the directions of the hirer, without his knowledge or consent, in the twi-Iight, when his presence was not easily discovered, took the place of one of the regular hands at that business, and was killed by a falling rock, the bailee would not be liable for the loss. Pearson, J., *dissentiente.*

*403AotioN on tbe case, tried before Saundees, Judge, at the Spring Term, 1857, of Orange Superior Court.

The plaintiff declared for the value of a negro, hired by him to the defendants, and killed whilst in their service on account of their want of proper care.

*John*Father, a witness for the plaintiff, testified that Calvin was hired to the defendants'for the year 1853, and again for 1854, to work upon the North Carolina rail-road, upon which they were contractors-; -that he was himself in their employment, principally engaged in blasting stone out of the road-bed, and that he was assisted in that business by one other white man, and four slaves belonging to the contractors ; that on the 4th of February, 1854, he had prepared six drills for blasting, late in the evening, which were fired off after it was too dark to see-fragments of falling stones, which might be thrown up; that Calvin assisted in loading the drills, and touched the fuse of one of them with a lighted match; that they all ran off when the matches were applied, and had proceeded about a hundred and fifty yards, when Calvin was struck down dead by a falling stone, weighing twenty-five or thirty pounds, which struck him on the head ; that it was not Calvin’s business to attend to the blasting, but to dump carts, and before the matches were applied, Mr. White, the defendants’ general agent and superintendant, in a loud voice, gave notice to all the hands, who were working in the cut, to remove their carts, and leave, which was done. He further stated, that Mr. White was at the place where they were preparing the blasts some fifteen minutes before the one in question took place, and during that time, Calvin was there also, assisting in loading the drills with gun-powder and preparing for the blasts, and that he remonstrated with Mr. White-against the danger of blasting in the dark, when they could not avoid the fragments of falling stones, but the other persisted, and the blasting took place ; that Abner, one of the regular blasting hands, left after Mr. White came up to where they were, and Calvin took his place ; that there was a great deal of blasting of stone done in the year 1853, and *404that although a general order was always given by Mr. "White for all the other hands to leave before the matches were applied, yet, that Calvin had often, during the year 1853, assisted in loading and firing the blasts in the presence of Mr. White, and with his knowledge, but that he had not been thus employed in 1854, and that this was the first day in 1854 that the blasters and other hands worked together at the same place, and that they had never blasted before after dusk.

*Stephen A.*White, a witness for the defendants, stated that he was the general agent of the defendants and superintended the work; that he was present when this blast was made ; that it was not quite dark, but deep dusk; that it was Calvin’s business to dump the carts, and that before the matches were applied, he gave orders, in a voice, loud enough to be heard by all the other hands, for them to leave; that he did not see Calvin at the drills, and did not know that he was there; he saw four hands at the spot, and supposed them to be the four, whose duty it was to be there; that he always told the hands to leave before the blasting took place.

The Court charged the jury, that the defendants were bound to use ordinary diligence in the working of the slave, and if they should find that the blasting of rock was a dangerous business, and that the danger was increased by blasting after dark, it would be such an act of rashness as a man of ordinary prudence would not be guilty of, and as such, would make tiie defendants liable. But if the jury should further find that the appropriate business of the slave was to attend to the carts, and the overseer had given the order for those thus employed to get out of the way, and the others had done so, but that Calvin, against his general order, and without the knowledge of the overseer, had taken the place of one of the hands engaged in blasting, and in consequence was killed,,their verdict should be for the defendants. Plaintiff excepted to to the latter part of this charge.

Yerdict for the defendants. Judgment and appeal.

*405Norwood, for tbe plaintiff. ■

*Bryan*and Phillips, for the defendants.

Battle, J.

The only part of the charge of his Honor to which the plaintiff excepts, is that wherein he instructed the jury, if they should find that the appropriate business of the slave in question was to attend to the carts, and the overseer had given the order for those thus employed to get out of the way, and the. others had done so, but that Calvin, against his general order, and without his knowledge, had taken the place of one of the hands engaged in blasting, and in consequence thereof was killed, their verdict should be for the defendants. The counsel for the plaintiff contends that this part of the charge was erroneous; for that the instruction should have been, that under the circumstances of the case, the conduct of the defendants’ agent was rash, and evinced, a reckless disregard of danger; that he ought not to have permitted Calvin to be present when the blast was made, and that by permitting his presence, he had not taken that degree of care of him which the law requires ; and that, consequently, the defendants (his employers) were liable for the loss of the slave.

If the testimony of the plaintiff’s witness, Parker, had been the only evidence in the cause, we concede that there would have been made out a plain case of the want of ordinary care, and the defendants would have been responsible ; and so his Honor very properly instructed the jury. But the testimony of the defendant’s witness, "White, presented the case in a different aspect, and it was to that, the instruction complained of was'dirccted; and it is our duty to say whether, in reference to that, it was erroneous. Now, it will be borne in mind that, i^ith. regard to the finding of the jury upon the comparative reliance to be placed upon the statements of the resj^ective witnesses, we have nothing to do. It was their province alone, unassisted by an intimation, even from the presiding Judge, .to determine which account of the transaction — that given by Parker, or that given by White — was to be taken as the true one. The office of the Judge was confined to the duty of in*406forming the jury wliat was the law applicable to the case in the different views in which it was presented by the testimony. In the absence of a prayer for any more special instructions, we think his Honor did all that duty required, when he charged that, upon one state of facts, which we see was that testified to by the witness, Parker, the defendants were liable for the loss of the slave, but upon another state of facts, which we also see was sworn to by the witness, White, the defendants were not, in law, responsible for such loss. Whether the latter instruction was erroneous is the only question which we have to consider. The testimony of White is, that he was the overseer of the hands when the fatal blast was made; that it was then not quite dark, but deep dusk ; that it was not the business of the, slave, Calvin, to make blasts, but to dump carts; that before the matches were applied, he gave orders in a voice loud enough to be heard by all the other hands, for them to leave, and that he always gave such orders on such occasions ; that he did not see Calvin at the drills, and that he did not know that he was there; and that he saw four negroes only, there, on that occasion. In considering his Honor’s charge, with reference to this testimony, we should take to be true the statement of the witness, Parker, that, during the preceding year, the slave, Calvin, notwithstanding the general order of the overseer, White, to the contrary, did sometimes assist in blasting, without rebuke from him; that on the occasion when the slave was killed, he took the place of one of the negroes, whose business it was to make blasts, that it was too dark to see falling stones, and that he had run off after the matches were applied, and had gone to the distance of about one hundred and fifty yards, when he was killed by a large fragment of falling stone. This occurred on the last Monday of February, 1854, it being the first occasion on which blasts were made that year. The slave, Calvin, was hired by the defendants to work on the rail road, and his proper business was that of dumping carts. The defendant had the right, therefore, to set him to work at the place where the blasting was done, and the only ground of complaint which *407can be made, is that lie was permitted to take the place of one of the blasting hands, and to assist in setting fire to the matches. The enquiry is narrowed down to this, then — was it the omission of ordinary care in the overseer not to have seen that Calvin was present, assisting in fixing off the blast? The cbnnsel for the plaintiff contends that it was ; and that he might have seen Calvin and ordered him away, had not the blast been made in the night. The witnesses differ somewhat in their statements as to the degree of darkness which then prevailed; but neither of them says it was too dark to see a man, or to distinguish one man from another, though it was too dark to see the falling stones. Mr. White says that he did see four men, (the proper number present,) but he did not ■observe that Calvin was one of them. Calvin had j ust before, as Mr. Parker says, changed places with Abner, one of the regular blasting hands. Was it a want of ordinary care in Mr. White, the overseer, not to have noticed the change ? Mr. White had not ordered him to be there ; on the contrary, he had just before, in a loud voice, told all except the regular hands, to leave. His indulgence in the previous year, to ■Calvin’s propensity for the business of blasting, may lead ns to believe, that if he had seen him, he would not have driven •him away. He had, however, on that occasion, in a general ■order, 'told him to leave, and his only fault then, (if fault it was) was in not having seen Calvin change places within Abner. Was this an omission of ordinary care for Calvin’s safety ? Upon the best consideration which we are able to give to the subject, we are constrained to say, that we don't think it was. Ordinary care, (say the *Court in Heathcock v. Pennington,*11 Ire. Rep. 640,) is that degree of it, which in the same circumstances, a person of oirainarv^i^cíteífee wuld take of the particular thing, were it his Thisjkiflnition does not fix a standard by which any tlmSgsJiKeíiln approach to mathematical exactness and certainty can be attained. The very nature of the subject forbids it. What man can be selected as the model of ordinary prudence ? What is ordinary prudence, as distinguished from that which is more or less *408than ordinary ? It is very nearly, if not quite impossible, for .any one man to establish a certain and invariable standard for himself, much less for others. In such cases the law has given a rule, without affording ns a certain guide, by which to follow it. Necessity requires some rule, and therefore,, the law has prescribed one. The nature of the subject prevents an approach, in such rule, to more than moral certainty, and we must be content to follow it as best we can.

In the care which is to be taken of a slave, he is to be considered an intelligent being, with a strong instinct of self-preservation, and capable of using the proper means for keeping out of, or escaping from, scenes of danger. “ Hence (say the Court in the above cited case of *Heathcock*v. Pennington,) the same constant oversight and control are not requisite for his preservation, as for that of a lifeless thing or an irrational animal.” So, in the case of *Herring*v. *Wilmington and Raleigh R. R. Company,*10 Ire. Rep. 402, the Court saying that, under the particular circumstances stated, the engineer of the rail-road cars would have been guilty of negligence in running over a log of wood, or a cow, added: “ But as the negroes were reasonable beings, endowed with intelligence .as well as the instinct of self-preservation, and the power of locomotion, it was a natural and reasonable supposition, that they would get out of the way, and the engineer was not guilty of negligence, because he did not act upon the presumption that they had lost their faculties by being drunk, or asleep.” Again, in the case of *Swigent*v. *Graham,*7 B. Mon. (Ken.) Rep. 661, it is said that, a “ slave, being capable of voluntary motion, of observation, experience, knowledge and skill, is presumed, in ordinary cases', to be capable of taking care of himself, if disposed to do so, without constant supervision or physical control;”

Let us apply these principles, so well sustained by authority, to the case before us, and see what will be the- result. We will admit that the blasts were the more dangerous by being in the night, and if Calvin had been one of the regular blasting hands, his owner might have complained of the overseer *409for ordering him to do such work at such a time. But be was not ordered tQ' be there.. It was no part of his business to be there. On the contrary, his duty required him to be elsewhere. If there were greater danger from the falling-stones .then, than there would have-been in the day time, his intelligence, and his instinct of self-preservation, ought to have kept him out of the way of harm. If the overseer had learnt by experience, that the slave would not obey his orders to leave in the day time, he had no reason to suppese that he would run needlessly into danger at night. The overseer, therefore, had nothing to arouse his suspicions, so as to keep him constantly on the alert, to prevent Calvin from changing places with one of the hands, whose duty it was to blast. We do not believe that a man'of less than extreme prudence, would have deemed it necessary to make such lookout, for the purpose of stopping Calvin from intermeddling in business with which he had no concern. We think that *Heathcock*v. Pennington, presented a case quite as strong as the present, against the hirer of a slave for the application of the rule of ordinary care. We .cannot decide against the defendants in the present ease, without unsettling the standard set np, in the one to. which we have alluded, by the unanimous opinion of the Court.

Pearson, J.,

*dissentiente.*What amounts to ordinary neglect is a question of law, and it is for the Court to say, whether a given state of facts fixes a pijrty with the charge of such neglect.. Every case, therefore, must depend on its peculiar circumstances, and it is seldom possible to generalise and establish a principle. Eor this reason, I did not file a dissenting opinion, although not entirely satisfied with the decision in *Heathcock*v. *Pennington,*11 Ire. 640; for, I thought it amounted to ordinary negligence, to make a boy work at a dangerous position, from 9 o’clock at night, until the next morning, during the month of January, and that at least one of the hands should have been a grown person. Boys, are not going to sleep, at allotted hours, in order to prepare themselves *410for nigbt work, and it was not prudent to trust tliem entirely by themselves. In that case, the boy was hired for the purpose of driving the horse at “ the whim.” It was known to be dangerous, and that it had to be worked night and day. Tin's clearly distingushes it from the present case, and besides, Ch. J. RuKFiN, in the opinion delivered by him, evidently confounds, “ *ordinary”*and *“*gross” neglect. He uses the word “ gross” as applicable to the degree of neglect, in that case, four times, and concludes that the defendant was not, under the circumstances, *“*exposed to the imputation of negligence, *much- less gross negligence.”*Yet, that case, is used as a guide for arriving at a conclusion in this, and this, will be used as fixing the principle, that if one gives a general order, although *he knows*that the party has been in the habit of disobeying it, and has no reason to believe that he will obey it on the particular occasion, he may screen himself, under such general order, from a liability to which his negligence would otherwise expose him. Against such a principle, I feel called on to enter my dissent.

His honor told the jury, that if blasting rock was a dangerous business, and the danger was increased by blasting after dark, “ it was such an act of rashness” as would make the defendants liable. “ But if the jury should *further jmd¡*(that is, although there was this danger and rashness,) that Calvin’s business was to attend the carts, and that the overseer had given an order for those thus employed, to get out of the way, but Calvin against his general order, and without his knowledge, had taken the place of one of the blasting hands, and in consequence was killed, the defendants would not be liable.”

Blasting rock after dark is dangerous; the blasting fereman remonstrated against it, and the defendants’ overseer was not only guilty of ordinary neglect, but of gross neglect — nay, rashness — in persisting and having it done. I have arrived' at the conclusion, that the order for the other hands to get out of the way, does not relieve the defendants from liability, on account of this rashness of their agent, on two grounds:

*4111st. Suppose the order to have been given bona fide, in respect to Calvin, as the blast was to be made under circumstances of increased danger, a greater degree of vigilance being called for at the hands of the overseer, ordinary prudence required that he should see to it that his order was-obeyed. It wont do for him to say that he did *net know*Calvin was there. This proves, either that it was so dark that he could not see, when none but a madman would set off'a blast, or he did not take the trouble to look, although as we are to assume, he was about to do a rash act. If one of the regular hands had been killed, there is~ no doubt the defendants would have been liable, although they were hired for the purpose of doing this dangerous work, and it would seem, there should be a like liability in respect to Calvin, who was hired for ordinary work, and who ought not to have been permitted to have any thing to do with blasting.

2nd. But in the second place; Calvin had worked under this overseer the year before; he knew that 'Calvin was in the habit of disobeying his general order; so, in respect to Calvin it amounted to nothing, and was the same' as if the he had been excepted out of it. IIow can the law allow such an order, impliedly revoked as to Calvin, and allowed to be disregarded by him, as a thing of course to be set up, and have the effect of relieving the defendants from a liability to which, it is admitted, they were otherwise exposed on account of the rashness of their agent ?

*State*v. Privitt, 4 Jones’ Rep. 100, furnishes an analogy in reference to the effect that this general order is entitled to. The defendant was indicted under the late statute, for a sale of liquor to a slave by his clerk.' The clerk swore that he had general instructions, from the. defendant, not to sell to slaves. It was left to the jury to say, whether by a course of practice to the contrary, or by a special approval, the general instructions were not abrogated. The defendant was convicted,'and on appeal, this Court concur in the opinion given of the general instructions in the Court below, and intimate that he had been dealt with .very favorably. The opinion *412concludes with a suggestion, that if general instructions are to hare the effect contended for, the statute would be very easily evaded. In-our case a general order is allowed to have the effect of relieving from liability, and nothing is said, and no stress is given to the fact of its being virtually abrogated *“ by*a course of practice *to*the contrary, or by special approval.”

Per Curiam. Judgment affirmed.