
    
      Joseph G. W. Duncan vs. The South Carolina Rail Road Company.
    
    The Rail Road Company hired a slave from the plaintiff, to work on their road, and it was agreed that the slave should not be employed on the cars or locomotives, but that he might be carried on the cars or locomotives, “ from any one place, to another place on the Rail Road where his services may be required.” The slave, with the knowledge of the conductor, went on the cars, and was carried beyond the place at which his services were that day required, and in jumping from the cars while they were in motion, was killed. Held, that the company were liable to the plaintiff for the loss.
    Tf the hirer of a slave violates his contract, by using the slave in a way different from that for which he was hired, and a loss occurs, although by the voluntary act of the slave, the hirer will be liable therefor.
    
      Before Butlek, J. at Barnwell, March, extra Term, 1846.
    This was an action of covenant, on a contract under seal, by which the defendants, through their agent, James M. Brett, hired from the plaintiff three slaves, one of whom was named Wesley, to be employed in working on the Rail Road. The contract was dated the 1st January, 1844, and the only material clause which touches the question in controversy, is as follows : “ The said James M. Breit agrees, that all or any one of said slaves shall not be employed on the cars or locomotives upon said road, but be otherwise employed upon the line of said road, at such places as the interest of such Company requires ; the said Company, by its officers, being at liberty at all times, to carry said slaves (from any one place, to another place on the Rail Road where their services may be required,) upon the cars or locomotives.”
    There were several breaches assigned in the declaration ; the second was as follows : That they, the said defendants, did, at some time, <fec. carry the said negro slave Wesley, on the cars and locomotives of them, the said defendants, from Hamburg to Aiken, when, and at which said last mentioned place, the services of the said slave, Wesley, in and about the business of the said defendants, were not needed nor required; by means whereof, the said slave Wesley, was thrown from the cars and locomotives of them, the said defendants, upon the Rail Road of them, the said defendants, and thereby killed in manner and form, &c.
    
    The testimony shewed that the slaves were placed in charge of Joseph Clark, who was under a contract as overseer, to keep the road in repair from Aiken to Hamburg, a distance of fifteen miles. The day before Wesley’s death, as hereinafter stated, the hands under Clark’s charge were working from Hamburg towards Aiken, about five miles from the former place, and were under peremptory orders to stay that night at Marsh’s turn out, which is eight miles from Hamburg, and therefore, about three miles from the place they were at work. Wesley, in defiance of the orders to stay that night at Marsh’s turn out, went and stayed at Hamburg. The next morning he was found in the baggage car of the regular train of passenger cars. The conductor of the train, W. H. McCormick, said the first he saw of Wesley, was' about a mile 
      
      from Hamburg. He spoke to him, and asked him “ what he was doing- there.” The boy replied, “ I am going to my work.” The witness said, “ I have a great mind to put you out. You may go along this time, but you sha’nt go again.” The witness then resumed his duties, and gave no farther heed to the boy. Here it may be stated, that the conductor has exclusively the control of the train, so far as it regards the places where it is to stop to take in or put out passengers. At this time he had charge of the United States Mail, and was bound to deliver it at Aiken at a particular time. The train stopped at the six mile post, to put out or take in a passenger. That was a usual place of stopping. This was about a mile from where Wesley had been at work the day before. He did not get out, but standing on thé tender immediately behind the engineer, he went on till the cars had passed beyond Marsh’s turn out; and here, whilst the locomotive was going on at its usual speed, the boy jumped' off; his feet lighting on, ■soft sand, which gave way, his body fell back on the track, and was run over and crushed by the engine. The train was stopped, and every attention bestowed on the boy ; but his case being hopeless, he was put in charge of one of the hands, and the cars went on, and in a mile or two met Mr. Clark, the overseer. He went on and had the body removed to Aiken, it being then, or shortly after-wards, lifeless.
    The jury, under the charge of the presiding Judge, found a verdict for the defendants.
    The plaintiff appealed, and now moved for a new trial.
    Bellinger, for the motion.
    Patterson, contra.
   Curia, per O’Neall, J.

On the second breach of the contract assigned in the declaration, I think the plaintiff is entitled to recover. The true construction of the defendants’ contract with the plaintiff, is, that the defendants might, when the services of the slaves were needed at some point on the Rail Road, transport them by their locomotives to such point; but that all other transportation of them by their locomotives, is forbidden.

It is perfectly clear that the slave, when killed, was not transported from one point where his services were no longer needed, to another where they were required. He had, contrary to the overseer’s orders, spent the night at Hamburg, and by the locomotive was returning to where he should have spent the night. The conductor of the train was aware, immediately after leaving Hamburg, that the slave Wesley was on board. He shewed, too, his sense of the impropriety that he should be there, by telling- him “ I have a great mind to put you out. You may go along this time, but you sha’nt go again.” This fact brings home to the company, through their agent, the carrying of the slave by their locomotive'' against, and contrary to their contract with his master. In such a case, it is in vain to say that the slave was a moral agent, capable of wrong as well as of right action, and that he killed himself by jumping off when he ought not. The case of Strawbridge vs. Turner, 9 Louis. Rep. 213 (Wheeler’s law of Slavery, 447) is full to that point. There the slave was in the employment of a steamboat. The Captain took him into her service, without the consent of his master, and he was drowned by jumping or falling overboard. It was held, that the illegal employment made the defendant liable. Here the defendants, in violation of their contract, carried the slave by their locomotives; this is equally as illegal as employing a slave without the consent of his master, and the same consequences must attach to it.

The law of bailments is as clear and as well settled as anything human can be — that the use of a thing hired, in any way different from that for which it is hired, makes the person hiring it liable for any injury or loss in such service. Story, in his treatise on bailments, p. 273, § 413, in applying this rule, says, “ if the thing is used for a different purpose from that which was intended by the parties, or in a different manner, or for a longer period, the hirer is not only responsible for all damages, but if a loss occurs, although by inevitable casualty, he will be responsible therefor.” According to this, the defendants cannot, in any way, shield themselves from answering for the plaintiff’s loss. The case of Butler vs. Walker, Rice Rep. 782, is a very analogous one to that before the court, and, if it be necessary to further fortify the plaintiff’s case, may be appealed to for that purpose. There, as Aere, the loss arose from the voluntary act of the slave; there, as well as here, the defendants had violated their contract of hiring; and it was held the plaintiff was entitled to recover. The motion for a new trial is granted.

Richardson and Frost, JJ. concurred.  