Heathcock v. Pennington

• Citation: 33 N.C. 640,11 Ired. 640
• Court: United States State Supreme Court of North Carolina
• Decision Date: 31 December 1850
• Parties: SOLOMON HEATHCOCK v. NELSON PENNINGTON.

11 Ired. 640

33 N.C. 640

SOLOMON HEATHCOCK

v.NELSON PENNINGTON.

Supreme Court of North Carolina.

December Term, 1850.

The degree of eare to be taken of a hired slave does not differ from that required as to other things.

It is erroneous to leave the question of due care to the jury; since it is the province and duty of the Court to advise them on that point, supposing them to be satisfied of certain facts.

Ordinary care is that degree of it, which, in the same circumstances, a person of ordinary prudence would take of the particular thing, were it his own ; and it will differ much, according to the nature of the thing, the purpose, for which it was hired, and the particular circumstances of risk, under which a loss occurred.

If an owner hire out his slave for a particular purpose, it is to be understood he is fit for it, and, therefore, he may be set to that service, and kept at it, in the way that is usual. If there be risks in such service, it is to be presumed the owner must have foreseen them, and provided for them in the hire.

The case of Biles v. Holmes, 11 Ire. 16, cited and approved.

Appeal from the Superior Court of Law of Stanly County, at the Spring Term 1850, his Honor Judge SETTLE presiding.

The declaration states that the plaintiff hired to the defendant a negro slave between the ages of ten and twelve years, for the term of one year from, &c., with permission to the defendant to employ the slave in driving a horse attached to a whim, at a certain Gold mine, belonging to the defendant, and that the defendant undertook and promised the plaintiff to take ordinary care of the said slave during the term; and that the defendant, not regarding his understanding aforesaid, wholly neglected and refused to take ordinary care of the said slave, and, by means of the negligence and improper conduct of the defendant, the said slave, while in the employment aforesaid, under the defendant, during the term and year aforesaid, viz., on, &c, fell into the shaft of the said gold mine, the same being 160 feet deep, and was killed and wholly lost to the plaintiff to the damages, &c. Plea, not guilty.

On the trial the plaintiffs gave evidence of the hiring, as stated in the declaration, and that the negro was of the age specified: that on a day in the month of January, the slave was put to driving the horse to the whin of the defendant's gold mine, at about 9 o'clock in the evening, with orders to continue the driving through the night until the next morning, under the directions of a young man, who was about 19 years of age and was employed as lander, as he is called, at the mouth of the mine or shaft. That the whim was about ten feet from the mouth of the shaft or pit, which was 160 feet deep, and at the surface 8 feet long, and 4 feet wide. That the negro boy did not have an overcoat, but was allowed to warm himself at a fire, which was kept up about 2 1/2 feet from the mouth of the shaft: that upon one occasion, when he went to warm, which was just before day light in the morning, and when it was dark, the lander called to him and directed him to start his horse, and the boy, being drowsy, in attempting to go to his horse fell into the pit and was killed.

The defendant then offered evidence, that he employed a negro boy of his own, and his son, who were about the same age with the hired boy, in the same service to which the plaintiff's slave was put; which was objected to on the part of the plaintiff, but admitted by the Court.

His Honor, therefore, charged the jury, that the defendant was bound to ordinary care of the hired boy: that his having employed his own son and slave in the same way with the plaintiff's negro was not a rule or standard, by which they should measure the care the defendants ought to have taken of the plaintiff's slave; because, if he did not take due care of his own family and property, that was no reason why he should not be chargeable for want of taking care of the slave he had hired. The Court then left it to the jury to say, whether the defendant had used ordinary care or not. There was a verdict for the defendant, and from the judgment the plaintiff appealed.

Strange, for the plaintiff .

Dargan for the defendant .

RUFFIN, C. J.

The degree of care to be taken of a hired slave does not differ from that required as to other things; and it was correctly so held on the trial. Indeed, the declaration lays the defendant's undertaking to be for ordinary care of the slave, and that the loss arose from the want of due care. It was, however, erroneous to leave the question of due care to the jury; since it is the province and duty of the Court to advise them on that point, supposing them to be satisfied of certain facts.-- Biles v. Holmes, 11 Ired. 16. Therefore the judgment would be reversed, if the verdict did not appear to be what it ought to have been, if the Court had given the proper direction. For, supposing all the evidence to be true--and as to that, there was no dispute--it did not establish, we think, a want of due care in...