Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-28
Test N. D. WELSH, Clerk.
MenphI, ana ohar!s.Lon 3. r. vs.. Jone..


This was an action on the case brought by Jones
against the company, to recover damages for the
! loss Of a slave, run over by a tram of cars and
| killed.
! The plaintiff recovered judgment for 81 ,232.
The record shows that Jones, the plaintiff hired
to the defendent for the year 1856 two negro boys
to work the railroad at twentythree dollars per
month for each. The contract for hiring contained
| the following stipulation, namely
And all risks incurred, or liability to accidents
whilst in SAID service, is compensated for and
cred by the pay agreed upon; the railroad compa-
ny assuming no responsibility for damages for ac-
cident, any cause whatever
The slave it seems was lying on the track Of the
road, as freight train Of ssme fourteen ap-
preached whether or not the slave was asleep, or
though it is most probable that he under the in
fuence of liquor. The engineer the locomotive
the boy he stated, at the distance of a hun
dred and fifty yards, but thought it a carpet
sack, or an old bag of clothes"
The train was stopped, but not until all the cars
except one or two had run over the body Of the
slave.
The proof shows that the road for a distance of
upwards Of two miles from the spot where the
slave lay straight and slight upgrade. There
is some disagreement as to the distance at which
the body might have been seen, as the train ap-
preached. We do not think it necessary. however
to notice the testimony particularly, the question
for our determination arises upon the charge of the
opinion, the verdict is supported by the evidence.
The Judge instructed the jury, that, under the
before reced stpulatiOns of the contract of hiring
the defendant would be responsible for the loss
Of the slave, unless it appeared from the evidence
that his loss was in consequence Of the 5ifd mis-
conduct gross negligence of defendants agents; and
that the burthen Of proof upon the plaintiff"
This instruction is supposed, by the counsel for
the plaintiff in error, to be erroneous. 1t az
gued with great earnesness that admitting the loss
of the slave to have been caused by the wful mis-
conduct or gross negligence of the defendants
agents in charge of the train, STILL the defendant
cannot be held responsible for the loss that the con-
tract is an absolute exemption of the company from
liability for any injury to the slave for his loss
no matter how occasioned. We think differently |
1t might be somewhat difficult to define the exact
meaning and effect OF the foregoing stipulatOn-thIs
however is not necessary for the present determ-
nation. But there is no sort Of difficulty in deter
mining what it does not mean. Ii is true the Ian
guage of the instrument is very strong but it must
receive reasonable and sensible construction. 1t /
would be most absurd to suppose that it the in
tentiOn and understanding of the parties that the
company should be protected from liability. not only
against all the ordinary casualties which the slave
might be exposed I'm working the road; and also /
against injuries caused by third persons in which /
the company had no participation; but likewise |
against injury or loss OccasOned by the willful /
wrong gross negligence Of the company itself, or
its agents.
Such construction Of the agreement is altogeth-
er inadmissibe. The stipulation is not available
for the defendant, against its own willful wrong OF
cupable negligence The charge Of the Court con-
cedes to the defendant the utmost bent that can be
claimed upon any just construction Of the instru-
ment. There is no error in the record.
Judgment affirmed. Mckinney.
Test N. D. WEIGH, Clerk.