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, etc., with permission to the defendant to employ the slave in driving a horse attached to a (641) whim at a certain gold mine belonging to the defendant, *Page 437 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, etc., 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, etc. 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 whim 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 nineteen 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 10 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 daylight 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 (642) 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 defendant 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. *Page 438 The decree 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, ante, 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 the defendant. The jury therefore judged rightly, and their decision ought not to be disturbed.
(643) 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. It is manifest that it may differ very 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; a coach, for example, is not kept like a casket of jewels. So, a slave, being a moral and intelligent being, is usually as capable of self-preservation as other persons. Hence, the same constant oversight and control are not requisite for his preservation as for that of a lifeless thing, or of an irrational animal. Again, if an owner let his slave for a particular purpose, it is to be understood that 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 he hire him, for instance, as a mariner upon a sea voyage, it is implied that he is to do the duty of a sailor. The ship's master, therefore, does the owner no wrong and evinces no want of due care by sending him for a useful purpose to the masthead, though it happen that from want of experience or a steady head, he fall and be hurt. If, indeed, he were sent aloft in a tempest and forbidden to use the common means of security by lashing himself to the mast or rigging, that would make a difference. But surely the omission to give the slave particular instructions to use those ordinary means of preservation could not render the bailee liable, as for culpable neglect; since every one would confide in his understanding and disposition to take care of himself, as a sufficient guaranty for his using the ordinary precautions against the danger naturally incident to the service. *Page 439 Moreover, the owner must have foreseen those risks and provided for them in the hire. These considerations tend to the conclusion that the defendant here would not be liable if the loss had arisen from a cause naturally connected with the employment for which the slave was hired. For it seems certain that the plaintiff knew that the whim at which his (644) slave was to work must be within a few feet of the mouth of the shaft, and, from the depth of the shaft, that the operations of drawing off the water and raising the ore must go on night and day, and, of course, that the mouth of the shaft would not at any time be closed. The hazards of working near the open shaft, and in the night as well as the day, were the known hazards of the service. Why did not the plaintiff warn the boy of his perils from those causes? Because he did not conceive there was the least necessity; and he ought not to complain that the defendant omitted directions which he thought unnecessary from himself. Unless the defendant, then, exposed the boy at an unreasonable time, or kept him at work for an unreasonable period, and the loss arose therefrom, he cannot be deemed negligent. It is stated that the boy had no overcoat. But the state of the weather is not given, nor is it stated that he was not otherwise sufficiently clad. Indeed, his condition in that respect is not pretended to have been the cause of his death, or connected with it, saving only that he may have been thereby induced to go oftener to the fire, and it happened upon the final occasion when he went there that he fell into the shaft. But admit that the boy would not have met with the fate he did but for going to the fire, or if the fire had been in a different situation, yet it cannot be deemed gross negligence not to forbid the boy to go to the fire where it was, or not to have one in a different situation. The fire was between the boy and the lander, whose station is at the mouth of the shaft; and it is not stated that such was not its usual position, or that it was not a proper one. Apparently it was the most proper. It was there equally convenient to the lander and the driver of the horse, and, in fact, it was, by its light, a better protection to the slave against accidentally stumbling into the shaft, as he passed near its mouth at every round on which he followed the horse, than if it had been in a different direction. There was (645) no such extraordinary hazard to the boys who worked the whim, in going to the fire where it was, as to have induced the defendant to forbid them or to use any uncommon precautions, or give any particular instructions; for example, to keep that fire so as to give a light, or to make the fire in another place. It could not have been anticipated that the boy was *Page 440 running any risk of falling into the shaft, which his own intelligence, at his age, would not prompt and enable him to avoid, considering him, as we must, as possessing the ordinary degree of intelligence and instinct of self-preservation of persons of his age and class. Then as to the time of making the boy perform this service — that is, at night. As has been observed, it is to be inferred that the work could not be stopped during any part of the twenty-four hours, without much loss; and that, in fact, it was the course of the business to keep at work. It is in that point of view that the evidence as to the employment of other hands in the same service, and for the night as well as the day, was relevant and proper, not as excusing gross neglect as to one by a similar neglect as to others, but as establishing the usual and necessary duties of the employment, and as tending to establish the safety with which it was attended, when pursued by others of no more years or discretion than this lad, without any particular supervision. Some one had necessarily, to perform this service at those times. Therefore it was not unreasonable, prima facie. It is not to be collected from the case that the slave had been worn down by labor so protracted as would ordinarily overcome persons of his age and condition by fatigue and heavy drowsiness, so as to deprive them of consciousness and the power of self-control. On the contrary, we understand that this boy took his rest through the day, as it is stated that in the evening he commenced his duty for the night — there being three of them, who performed the (646) task among them, and probably by turns. We cannot say that was unreasonable; at least, not so in its bearing on the point now under consideration, namely, as ordinarily disqualifying a boy like this for taking care of his life by avoiding the shaft, as with his senses about him he would do, and thereby making it incumbent on a bailee, as an act of ordinary care, to stop him from work, or appoint a superintendent to keep him away from the shaft. If the defendant had, for example, sent the boy down the shaft, considering his inexperience and timidity, it would, doubtless, have been gross negligence not to provide against the accident of his falling, by making him fast to the bucket or chain. But with common bodily vigor and ordinary intelligence the boy was capable, after the repose of the day, of doing his business on the surface of the ground for the night, though near the shaft, without any probable hazard of getting into it; and, in the same degree, the vigilance of the defendant over his safety might be relaxed without exposing him to the imputation of negligence much less gross negligence. The truth is, the event could not have been *Page 441 reasonably apprehended, and was not likely to result from the service, nor had any natural connection with it. No one could suppose that the boy, knowing the place and its dangers, would incur the risk of stumbling into the shaft by not keeping wide awake. It was his misfortune to resemble the soldier sleeping at his post, who pays the penalty by being surprised and put to death. The event is to be attributed to one of those mischances to which all are more or less exposed, and not, in particular, to the want of care by the defendant.
Cited: Hathaway v. Hinton, 46 N.C. 246; Brock v. King, 48 N.C. 48;Couch v. Jones, 49 N.C. 407; Woodhouse v. McRae, 50 N.C. 2; Swann v.Brown, 51 N.C. 152; Haden v. R. R., 53 N.C. 365; Bryan v. Fowler,70 N.C. 597; Pleasants v. R. R., 95 N.C. 203; Emry v. R. R.,109 N.C. 592; Miller v. R. R., 128 N.C. 28.
(647)