delivered the opinion of the court:
This is an action upon the case, instituted in the Fulton circuit on the 19th day of February, 1851, which was before the adoption of our Code of Practice. The suit was brought by Thomas against Meekin, who was the captain and commander of the steamboat Empire, to recover the value of a negro boy, Lewis, hired to Meekin as a fireman, who made his escape from the steamer into the state of Ohio, whilst she was lying at the wharf at Cincinnati.
The declaration avers that the boy was hired to to operate as fireman on the steamer, on her trips from the ports of Kentucky to the port oí New Orleans, and that the boy was received on board for no other or different purpose, that the steamer was advertised and held out, as a regular boat between the ports of Louisville and New Orleans, and that, by the contract of hiring, the negro was to be kept *715safely on the boat, that defendant, not regarding his duty, afterwards ran said steamer into the port at Cincinnati, and kept him so negligently and improperly, that he escaped from the boat into the state of Ohio, which is a free state, and was thereby wholly lost to the plaintiff.
Prior to to the hiring, the plaintiff, Thomas, had left the boy with W. E. Sublett, a wharf-boat master at Columbus, in Hickman county, to be hired as a fireman on a steamboat — not to be hired on any particular steamboat — but simply to be hired on a steamboat as a fireman. No directions, whatever, were given to Sublett, except to hire the boy as fireman on a steamer. Not long after the boy was left with Sublett, the Empire hove in sight on her trip up the river from New Orleans. She was hailed from the wharf-boat, and was told by Sublett that he had a hand for the steamer, she then came up to the wharf-boat, and barely touched, the captain saying that the steam was too high to stop, the boy was received on board upon hire as a fireman, and the steamer immediately heaved ahead. No directions were given, and no inquiries were made, as to the points at which the boat was, or was not, to land with the boy, and no restrictions, whatever, were placed upon the defendant, the commander of the boat, as to any particular ports to which the boy-should not be carried.
The proof is. that the crew was composed of negroes, and that the sign-board of the boat pointed out Louisville as her place of destination at the time the boy was hired and taken on board. It also appears from the testimony of the plaintiff, that the Empire was a Louisville and New Orleans boat, and that her customary trade was at, and between, those points, and that this was generally known in the vicinity of the hiring.
The testimony on the part of the defendant is, that the Empire did not operate exclusively at Louisville and New Orleans and intermediate points, but *716has always run and operated wherever the commander thought the best and most profitable trips could be made, stopping at ail the points hetwcou New Orleans and Cincinnati, arid New Orleans and St. Louis, landing in free, as well, slave states.
Upon this state of case, the principal question is, whether by the simple fact of navigating his boat to the wharf at Cincinnati, in the free state of Ohio, the defendant violated his duty, and incurred the responsibility of answering in damages for the loss or escape of the boy. The circuit court assumed in its instruction, No. 3. given to the jury at the instance of the plaintiff, that this fact, alone, rendered the defendant responsible for the escape of the boy, whatever may have been the care and diligence observed to prevent his escape. We think this instruction clearly erroneous, it is in the following language :
“The court instruct the jury that if the}’ believe from the. evidence that plaintiff hired to defendant his slave, as a hand on the steamer Empire, and that she was plying between the ports of New Orleans i and Louisville, and such was her custom, known generally in the. country, and that, without any special contract or notification to the plaintiff or his agent, at the time of receiving said negro slave, that said steamer was fo go to Cincinnati, and carried said slave as a hand on said boat, and that, whilst lying at the port of Cincinnati, said slave escaped from said boat, and has not been returned to plaintiff', the law is for him, and the jury must so find.”
Now, although the Empire may have usually ply-ed between Louisville and New Orleans, yet. it is shown that .-lie went occasionally to Madison in Indiana, and Cincinnati, Ohio, and St.. Louis, Missouri; and it is known to be ihe profession and business, of steam boats navigating the Mississippi and Ohio rivers, to visit and land at points, whether on slave, or free territory, where the best prospects may offer’ *717themselves for the interest and emolument of the owners. To this effect is the proof in this cause in regard to the Empire, and, although it may have been her custom to ply between the ports of Louisville and New Orleans, it must be assumed to have been expected and known to the plaintiff and his agent, Sublett, and others, that the object of steamers was to operate for the interest and pecuniary advantage of their proprietors, and that whatever may have been their customary routes, these routes were changed as business and profit required. Such was the practice, according to the proof, of the Empire, she went where business invited, and where her prospects were brightest. In doi.ng so, she was pursuing her legitimate business, and cannot be held accountable for the escape of hired slaves on board, whilst thus lawfully engaged, simply because she made a voyage to Cincinnati, and landed upon free soil. It may be, and we believe it is true, that it is more hazardous to land with slaves at Cincinnati, than at other points in free territory on the Ohio river. Still the Empire did not go beyond her legitimate sphere, in making a voyage to that port, in the pursuit of her business and profession, and cannot be held responsible for doing so.
The owners of slaves who hire them to steamboats must be presumed to know their habit and custom and business and profession, and to risk the hazards of the service to their slaves, and to make their contracts of hiring in contemplation of all the risks incident to the service, unless it be stipulated to the contrary.
The Empire, whilst plying between Louisville and New Orleans, must have been in the constant habit of landing at the. intermediate points, New Albany, Evansville and Cairo, in the free states of Indiana and Illinois, and this was certainly known or believed by the plaintiff, and his agent, Sublett, and must have been expected to continue, and yet no restriction was placed upon the defendant in regard to *718landing at those places, and no requisition made that the boat should cease to land at those points, or should not visit other places in free States.
1. If the hirer of a slave to work on a steam boat navigating theOhio andMis sissippi rivers, make no special contract with the person hiring, imposing restrictions as to the points at which the boat may laud with the slave, it will be presumed that the boat will land wher ever interest or duty may require, and there will be no liability, if, upon the boat landing on free territory, the slave escape, unleaa the person hireing failed to exercise that care and diligence which a prudent man wouid exercise in respect to his own slave. 2. If one hiring a slave should practice any deceit upon the owner, by inducing a be lief that he would only land at particular points, and should violate such understand ing, he might be responsible in case of cape of the slave — argu.*718But, it may be said that as, at the time of hiring, the sign-board of the Empire indicated Louisville as her place of destination, the plaintiff, or his agent, Sublett, might have been deceived by this index, and, therefore, that the defendant should be held to have violated his duty in going beyond Louisville to Cincinnati, and be made accountable on this ground for the escape of the slave. This index, however, was not hung out to the owners of slaves who might wish to hire them, nor for the purpose of obtaining hands to operate on the boat, but was hung out for freight and passengers, and might have been taken down at any time, and the purpose and object of this signboard being generally known, must be presumed to have been within the knowledge of plaintiff’s agent, and he could not well have been deceived thereby, and had no right to rely on it as an evidence that the boat was going no further than to Louisville. Such an index was a token that the Empire was bound for Louisville, but is not sufficient evidence that she would go no further. She may not, at the time, have intended to prosecute her voyage beyond Louisville, and yet, upon reaching that point, have found it to her interest to visit Cincinnati in pursuit of business. This was natural and to be expected, and must be taken to have been in the contemplation of the hirer, in the absence of any restrictive stipulation.
The result is, that if the hirer of a slave, to operate on a steamboat, make no special contract to the contrary, and impose no restriction upon him to whom the slave is hired, as to routes and places of landing, the latter must be considered at liberty to go to any point or place on the rivers then being navigated by him, where the appropriate business of his boat may call him. Whether he would have a right to deviate so far from the accustomed route of his business as to leave the waters usually navigat*719ed by him, and penetrate rivers running into the interior of free states, and prosecute his business of steamboating thereon, with hired slaves on board, and not be responsible for their escape, though no . . k i j ,. express restriction was placed upon him, is a question which does not arise and need not be decided.
It certainly must be taken to have been in the contemplation of the owner of the slave, and of his agent, Sublett, that the Empire would, as its business might require, visit and stop at points on the Ohio river, as far, at least, as this river is common boundary to Kentucky, Illinois, Indiana, and Ohio. And the defendant must be regarded as having the privilege of doing so, in the absence of any stipulation to the contrary. The responsibility of the defendant, therefore, must not rest upon the fact that he visited Cincinnati with his boat with the slave on board, but it must be tested by the rules of law applicable to him simply as bailee of the slave. If, when he arrived at Cincinnati, he exercised due and proper diligence to prevent the escape of the slave he is not responsible, if he failed to do this, he is responsible.
Instructions, Nos. 4 and 5, appear upon their face to have been given at the instance of the defendant, yet the record states that they were given at the instance of the plaintiff. These instructions are only slightly objectionable, and do not differ materially from each other. They tell the jury, substantially, that, if they believe it was the custom of the Empire to ply between New Orleans and Cincinnati, or other ports where business was most profitable, (and that the slave was put on board as a hand, and the boat was run to Cincinnati with the slave on board, and that the captain and officers took reasonable and proper care of the slave under the circumstance, and used due and proper diligence to reclaim him, the law was for the defendant, unless there was an understanding, or express contract, that the slave was not to be taken to Cincinnati.
*720If these instructions were asked by the defendant, (and wo suppose they were, notwithstanding the record as it stands, is to the contrary) they are not as favorable to him as they might have been. We have seen that, whether it was the custom, of the Empire, to go to Cincinnati or n,-t, she had the right to go there with the slave, in the absence of an agreement or understanding that she was not to do so, and it is certain that there was no understanding or agreement between the parties that she was not to take the boy to Cincinnati.
Instruction No. 1, asked b}r defendant and refused by the court, when so shaped as to appljr to the facts of this case, would be unobjectionable. As it st ands, it would, in principle, exonerate from responsibility the bailee of a slave to be employed on a steamboat, in the absence of any restriction upon him, although he might divert the the boat from the waters in which she is then running, to the rivers penetrating the interior of the free states, which presents a question which we do not decide, because it does not arise, and because we are not prepared to say that such a diversion might not be a deviation not to be regarded as in the contemplation and expectation of the owner of the slave, and for which the bailee ought, to be held responsible.- It will be time enough to decide that question when directly presented.
instruction No 2, also asked by the defendant, and refused by the court, contains, substantially, the same principle, butin terms less acceptable and appropriate.
The sum of the foregoing views is, that the Empire, in going to Cincinnati, did not go to a point beyond what, in reason, the owner of the slave, or his agent, might and ought to have expected her to go, if her business, in the estimation of her commander, required it, and that he cannot be held responsible for the escape, at that point, in the absence of astipulation or agreement that he was not to go there, unless the escape was in consequence of a failure to *721observe ordinary care and prudence, and by the terms “ordinary care and prudence,” we mean, of course, such as a man of ordinary care and prudence would have exercised, in view' of the hazards incident to slave property at the port of Cincinnati, had the slave been his own. Whether the care, caution and prudence, which the circumstances demanded, was observed or not, it is the province of a jury to determine, and we forbear to make any remarks upon that subject.
It may not be superfluous to add, that if the bailee of a slave to be employed on a steamboat should, in contracting to hire him, deceive the owner or his agent, by inducing him to believe that his boat was to be navigated only between particular points, and should afterwards transcend those limits, and the slave should escape he might justly be held accountable, even in the absence of a stipulation or agreement that the boat should be employed only within those points. If the confidence of the owner of the slave should thus be betrayed, it would be a fraud upon him, for which the bailee should account. Nothing of the kind, however, occurred in this case. It is in proof that Faucett was interested in the boat and he was on board when the slave escaped, and the presumption is that he would have to share any responsibility which may be imposed upon the defendant for the slave’s escape, and we think that hia deposition was not improperly excluded.
Judgment reversed and the cause remanded for a new trial and further proceedings consistent with the principles of this opinion.