#### Sampson H. Butler *v.*N. G. W. & R. W. Walker.

Action of covenant. The defendants were contractors to embank a part of the rail road near Blackville; they hired from the plaintiff ten slaves to work thereon, and by their covenant agreed “ *not to expose*the slaves to rain or other bad weather, *or dangers of any kind.”*The defendants also stipulated by their covenant that they would not require the slaves to labor before daylight or after dark. The slaves worked one month, and in February, a day or two before the expiration of the month, the slaves of the plaintiff were discharged from work between sundown and dark. To reach their encampment they had to go around a pond through which the rail road ran at an elevation of about fourteen feet. The defendants *overseer*said that the defendants had directed him to send the negroes always around the pond and not to suffer them to go through on the rail road. At different times, however, (this witness said,) when they were discharged before night, they had gone through the pond on the rail road. On the evening when the accident occurred, the witness (defendant’s overseer) said he ordered the negroes of the plaintiff to go around the pond. Just after they were discharged, a hand car belonging to the rail road under the charge of one Costello came up; the overseer of the defendant’s asked leave to *go*in it, which was granted, and he got into *it;*he said he did not know that any of the plaintiff’s negroes were aboard until about the time the accident occurred ; but Costello testified that the defendant’s overseer and the negroes applied together for leave to ride through on the hand car. In the midst of the pond, about half an hour in the night, the party with and on board the hand car, found that a *locomotive*was approaching; to avoid which they jumped out of the hand car and some descended by the posts of the road safely to the face of the pond, which was covered with strong ice. The slave (George,) one of the negroes hired by the plaintiff to the defendants, in attempting to descend fell, and was so much injured that he died in a few days.

Upon this evidence the Judge below instructed the jury that the covenant of the defendants “ not to *expose*the plaintiff’s slaves to dangers of any kind,” included their omission, (when their overseer was present,) to prevent the slaves from being in danger, as well as placing them by their command in danger: and that dangers *of any kind,*meant dangers incident to the rail road, as well as others. That passing upon the rail road after night in a hand car was dangerous, inasmuch as it was liable to be run down and crushed by a locomotive.” The jury found a verdict for the plaintiff, giving him about one-half of the value of the slave ; and a motion for a new trial on the part of the defendants was refused.

*183
      *Before O’NEALL, J., at Barnwell, Spring Term,*1838.

The report of his Honor the presiding Judge, presents all the facts in this case and the questions arising on them, and is as follows :

“ The defendants were contractors to embank a part of the rail road near Blackville; they hired from the plaintiff ten slaves to work thereon, and by their covenant agreed to pay f12 50 cents per month, hire, and “ not *to expose*the slaves to rain, or other bad weather, or *dangers of any kind.”*The defendants also stipulated by their covenant *that they*would not require the slaves to labor before daylight or after dark. The slaves worked one month, and for $125, their wages, and the interest thereon, it was conceded that the defendants were liable. In February, a day or two before the expiration of the month, the slaves of the plaintiff were discharged from work between sun down and dark. To reach their encampment they had to go around a pond through which the rail road ran at an elevation of about fourteen feet. The defendants’ overseer said that the defendants had directed him to send the negroes always around the pond and not to suffer them to go through on the rail road. At different times however, this witness said, when they were discharged before night, they had gone through the pond on the rail road. On the evening alluded to, he said he ordered the negroes of the plaintiff to go around the pond. Just after they were discharged, a hand car belonging to the rail road company, under the charge of Costello, came up: the overseer of the defendants asked leave to go in it, it was accordingly granted, and he got into it. He said he did not know that any of the plaintiff’s negroes were aboard until about the time of the accident hereafter to be spoken of. Costello, however, said that he and the negroes applied together for leave to ride through on the hand car. In the midst of the pond, about half an hour in the night, the party with and on board the hand car, found that a locomotive was approaching. To avoid it they jumped out of the hand car, and some descended the posts of the road safely to the face of the pond, which was covered with strong ice. The slave (George,) belong*184ing to he plaintiff, in attempting to descend fell, and was so much injured that the died in a few days. The only question was, whether the defendants under the terms of their covenant were liable for the injury thus sustained by the plaintiff? I thought they were. — • Their covenant not to expose the plaintiff’s slaves to dangers of any kind, included I thought their omission (when their overseer was present) to prevent the slave from being in danger, as well as placing him by their command in danger: and that dangers of any land, meant dangers incident to the rail road, as well as others.— That passing upon the rail road after night in a hand car was dangerous, inasmuch, as it was liable to be run down and crushed by a locomotive.”

The jury found for the plaintiff the hire and interest, and about one-half the value of his slave.

The defendants appealed and now moved for a new trial on the following grounds: 1. Because the defendants did not expose the slave in question to dangerá of any kind, and were not guilty of any negligence. 2. Because they did not expose him to dangers of any kind within the covenant, or with reference to the particular employment for which he was hired. 3. Because the injury to the slave resulted *from*accident after the hour of work, or from his own voluntary act, without the knowledge and contrary to the orders of the defendants. ■

*Patterson,*for the motion.

*Bellinger,*contra.

Cuma, per O’Neall, J.

The instruction of the Judge below to the jury, meets the approbation of this court.

The motion is dismissed.

Gantt and Richardson, Justices, concurred.