
    Sims & Smith v. Chance.
    Where the defendant alleged that the contract between himself and plaintiff was in writing and was delivered to the plaintiff at the time, and said allegation was, on exception by the plaintiff, stricken out: Meld, That the ruling did not affect the case, and that there was no error. (Note 79.)
    Where it comes out, in the course of the trial, that a contract which is the subject of controversy was in writing, it is proper to move the court to exclude from the consideration of the jury any paroi evidence of such contract which may have been received, or to ask the eourb to instruct the jury to disregard it.
    
      Quere as to the proof that will sustain a motion to exclude parol evidence, on the ground that* better evidence exists.
    
      Quere as to the certainty required in assignments of error. The appellee and the court ought to be apprised of the points which will be insisted upon by the appellant.
    
      'i he rule is well settled that where there is a conflict- of evidence — where it does not clearly appear that the verdict is wrong, as that it is without or against evidence — a new trial cannot be granted.
    The prima facie presumption would be that a slave, hired to assist in carrying on the business-of a steam-mill, might be employed in any of the ordinary duties or services necessary to the successful operation of the said mill,
    Bub if the bailment were for a particular purpose, if the slave, as in this case, were hired to-perform the duties of an axe hand alone, then it is very clear that the defendants, by employing the property otherwise than as stipulated (in a steam mill) are responsible for his loss, (by accident in the mill,) irrespective of the fact of whether they exercised due care and attention or not. The law presumes that the loss happened from the misuser of the property. (Note 80.)
    The degree of care and diligence required of the bailee in a contract of hire varies according to the .species of property over which it is to he exercised; but in all cases lb must be. the same which a person of ordinary prudence or discretion would exercise in relation to the particular thing, were it his own property. A slave is a rational being, capable, in ordinary cases at least, of taking care of himself, and may be expected to perform most of his duties without constant supervision and control, or without the necessity of being constantly watched or followed to keep him from running unnecessarily into danger. But he ought not to be exposed to extraordinary hazard, although incident to the service, without necessity, and without such precautions, by instructions or otherwise, as circumstances may require, and as a man of ordinary prudence would use in exposing his own ,slave to the same danger. (Note 81.)
    The bailor, in a contract of hire, is under the corresponding obligation (which may be waived by special contract or notice) that the property hired shall be reasonably fib for the uses- or purposes known to be intended.
    
      Error from Walker. Chance sued tiie plaintiffs in error for the value of a slave, alleging-, in substance, that said slave, while in the employ of the defendants, under a contract of hire as a wood-chopper, was, in violation of the contract, put to work by the defendants in their steam mill, and, while thus employed, was negligently caused and permitted by said defendants to come in ■contact with the machinery of said mill while the same was being put in motion, &c., by means whereof said slave received an injury which caused his death.
    Defendants answered—
    1st. By exceptions to the petition, on account of uncertainty and insufficiency.
    2d. That the contract was in writing, and was delivered to tlio plaintiff at the time.
    3d. That they had hired the slave as a wood-chopper, hot to be employed at such work as suited them; and that said slave, without any default oil their part, and while employed as was usual about a steam mill, came to his death by reason of his own negligence and misconduct.
    Tiie plaintiff excepted to the defendants’ plea that the contract was in writing, and moved that it be stricken out. The court overruled the defendants’ exceptions, and sustained tiie exceptions of the plaintiff.
    Tiie testimony as to the terms of the contract of hiring was contradictory. ÜÑTo objection was made by the defendants to the proof of the contract by parol. It was proved that the defendants had used proper caro, and that tiie slave ■caused the accident by his own rashness and carelessness, after being repeatedly cautioned by tiie defendants. There was a verdict for the plaintiff'; motion for new trial; overruled; statement of facts; but no record of any instructions given or refused. The plaintiffs in error assigned error—
    1st. In striking out defendants’ pleas.
    2d. In overruling their exceptions.
    3d. In charging against law.
    4th. In refusing to charge the. law.
    5tli, In refusing to grant a new trial.
    Gth. For other causes.
    
      Yoatcum §- McCreary, for plaintiffs in error.
    I. The contract of hiriug was in writing. This we alleged in our first answer. This part of our answer, being excepted to, was stricken out by the court below. The proof shows that the contract of hiring was in writing. It should have been set out or referred to in the petition. As much of tiie controversy grew out of the question whether, by the terms of tiie hiring, the boy should work about the mill, tiie writing was necessary to explain that point.. But this writing was held back by Oliaiice, and, as we allege, another and different contract verbally set up. We think, therefore, the court below erred in ■striking out so much of our answer as set up a written contract.
    II. This letting to hire of the negro is of that class of bailments called con-ductio or locaiio; and as the bailment is beneficial to both parties, the bailee must answer only for ordinary neglect. It is admitted that if the bailee used the negro differently from his agreement, lie would be liable at ail events. But as there was positively no restriction in the contract as to what the boy should do and where lie should work, the baillee liad a right to employ him about tiie mill. (13 Johns. B., 211.)
    In the case of Mims v. Mitchell, (1 Tex. II., 453,) tiie hirer, it is said, is bound to observe towards tiie slave the same humane and careful treatment which a humane and prudent master would observe in the treatment of his own slaves. Does not tiie evidence show that this was fully done by the bailees? The cautions and warnings were often repeated. (1 Yerg. K., 73 ; 9 Id., 270; 4 Port. B... 234.)
    In tiie case at bar the agent of the bailor knew as well the dangers of the machinery as the owners. They were before his eyes. He knew the character •and disposition of his negro also, which tiie hirers did not know. It was then .a fraud upon them to hire them a negro of a disposition so reckless, without .giving them notice of the fact, and having it inserted in the contract that the hoy was not to work about the machinery. And to enforce the judgment below would be a consummation of that fraud.
    III. The liability of a bailee is different in the case of intelligent beings, vizr slaves, from goods of other kinds. (Boyce v. Anderson, 2 Pet. It., 150; Clark ■v. McDonald, 4 MeC. R., 223; Williams?). Taylor, 4 Port.. R., 238.) In the «ase of Clark v. McDonald, in McCord, two slaves were drowned by an .accident happening to a steamboat, it was held that the owner or carrier was not liable if the loss was caused by the act of the slaves. This rule, too, was laid down in regard to a case of carriers, in which the rule of law is more strict, than in other cases of bailment, especially of bailment for hire.
    
      B. G. Franklin, for defendant in error.
    I. In reference to the 3d, 4th, and 6th assignments of error, I would remark, that there is nothing in the record to show that the court gave or refused any charges to the jury. The 6th, “and for other reasons,” is not an assignment of any error under our statutes relative to the subject. (Hart. Dig., art. 2940.)
    II. The 2d assignment, that the court below erred in overruling defendants’ -exceptions to the petition, I apprehend, cannot be sustained. A reference to the statements in the petition and amended petition, and the case of Wise v. Freshly, 3 McCord’s Rep., 547, and the case of Mims v. Mitchell and the authorities there cited, would seem conclusive that on the face of the petition the plaintiff would be entitled to recover if the facts were proved as alleged.
    III. The first assignment, that the court erred in striking out defendants’ pleas, would seem to imply that the court below had stricken out all of the defendants’ pleas. By a reference to the plaintiff’s exceptions to the 1st, 2d, sind 3d pleas of defendants, and the plea as presented in the answer, and the ruling of the court, it will be seen that the only part of the answer stricken ■out is the following : “2d. And for further answer they say that the contract for hiring was in writing, signed by the defendants, and at the time of such hiring delivered to petitioner.”
    That this part of the answer was properly stricken out it seems to me no one ■can doubt. It presented no issue or defense to the plaintiff’s action; and if .any issue could have been made on the same, it was immaterial. The plaintiff had alleged the hiring of the negro, and would have been at liberty to prove it either by parol or by writing. If it had been in writing, and the plaintiff proposed to prove it by parol,'the defendant might on the trial have ■excepted, and required the production of the writing. It'does not appear that .any exception to the testimony offered and given at the trial was taken by the defendants. The decisions and rules laid down by this court in Mims v. Mitchell, (1 Tex. It., 443,) Bordon v. Houston, (2 Tex. It., 594,) and Patterson v. ■Goodrich, are authorities in point.
    IV. The 5th assignment, that the court erred in refusing to grant a new trjal. I think I have shown that nothing in the rulings of the court below on questions of law entitled the defendants to a new trial. Did the court below err in refusing to grant a new trial because the jury found a verdict for the plaihtiff •on the testimony? I think not. The verdict depended on questions of fact. The verdict rested on the evidence introduced and the credibility of the witnesses. The testimony was conflicting. The jury were the judges. In such a case it is not enough that it is not cíear that the verdict is right, but it must clearly appear that it is wrong, to induce the court to set aside the verdict. I could not begin or conclude an argument on this assignment better than by reading from the opinion of this court delivered in the case of Briscoe v. Bronaugh, (1 Tex. 1Í., 339 and 340,) to which the court is respectfully referred.
   Hemphill, Ch. J.

Prom the general terms in which the first assignment is expressed, it might be inferred that all the pleas of the plaintiff's in error Iliad been stricken out. But the record shows that the only averment of de-fondants stricken out or to which exception was sustained is that which alleges (he contract of hire to have been in writing, and that such contract had been, at the time of hiring, delivered to tlie plaintiff in tlie action. If this general assignment be intended to refer to the ruling of tlie court in this particular, we are of opinion that it is not well taken. It does not appear to be of material consequence whether such averment formed a part of the answer or not. Tlie fact whether (.lie contract be in writing or not would intrinsically be an immaterial issue; and on that ground the allegation was properly excluded. But that would not affect the right of the defendants to prove tlie contract to have been reduced to writing or to establish its contents. The plaintiff liad not averred that the contract was verbal, and it was in his power to have introduced any proof, verbal or written, to have substantiated the allegations of the petition. But if id had appeared in the course of the trial, by the evidence of either party, that the contract had been in writing, and that the same had beeu delivered to the plaintiff, and there was a conflict in the testimony as to the terms of such contract, the defendants might have insisted on tlie production of the written evidence or some account of its loss or destruction. It would then have been material to their defense, and would have constituted the most authentic evidence of its contents and of the terms of the contract between the parties. There is but one witness, however, who testifies that the contract was in writing, but he states that he did not read it, nor is there any evidence that he heard it read. This would not have beeu of itself sufficient to have'justified any motion founded on the 11011-production of tlie written document, or for instructions to the jury that they must exclude from their consideration the parol testimony as to the stipulations of the agreement. And at all events, whether it were sufficient or not, no such motion was made, and no such instruction was asked; and the defendants cannot now, in this court, claim the reversal of the judgment on the ground that the contract was in writing or that the averment to that effect was stricken out of tlie pleadings.

The second error assigned is in overruling tlio exceptions of the defendants.

In answer to this, it will be sufficient to state tiiat the facts alleged in tlie petition, if proven, would entitle the plaintiff' to recover; and there is no error in overruling- the exception to its legal sufficiency.

Th.e third assignment of error, viz, in charging- against. law, and the fourth, in refusing to charge the law, are too vague and general to require of the court to examine the record to ascertain what was charged and what refused, and to inspect minutely all the rulings of the court to detect some lurking error that might, perhaps, on such exploration be brought to light; and, in fact, all the assignments, except the fifth, aro objectionable fronCtho indefinite generality of their terms. But they are not more so in this case than in many others; and perhaps some excuse maybe found for assignments of this character in the hurried manner in which, from necessily, they must frequently be made. But the appellee and the court ought always to be. apprised of the points which will be insisted upon by the appellant. It is due to tlie attorneys who have tiled their assignment to say that in (his as well as in all their eases their briefs are filed for a greater or less period before the trial of the cases; and that, consequently, the opposing partios are informed of the special grounds on which they will insist. But in this case tlie record does not show what charges were given or refused by the judge; consequently, there is nothing presented for revision under said assignments.

The. fifth alleged error is tlie refusal to grant a new trial. Tlie motion is predicated oil several grounds. The fourth'and fifth, impugning tlie. verdict as being contrary to law and evidence, only require consideration ; and tlie argument of tlie appellants is confined to these, in effect.

The plaintiff, in the petition, alleged that iic had hired the slave Bill to the defendants as an axe hand, and on tlie agreement that lie was to be employed in cutting timber necessary to carry on the said steam-mill business, and not as a hand to be employed about the machinery; but that tlie defendants had, without authority from tlie plaintiff, caused tlie said slave to assist in. putting the machinery in motion, by putting his shoulder to the fly wheel, and negligently caused and permitted him to remain in this dangerous position and in contact with the machinery while the same was being put in motion by steam, by-which tlie slave received an injury terminating in death; and -also, that his death resulted from the want of due diligence and care on the part of the defendants.

On such allegations the plaintiff attempted proof, that by the terms of the • contract the slave ivas not to be employed in assisting in tlie mamagement of the machinery; and consequently, that bis death was the inevitable result of his •employment in a service which he was not hired to perform; and also, that his death resulted from the negligence of the defendants, in not taking the proper precautions to secure the life of tlie slave against the danger to which lie was exposed. Rebutting evidence was introduced by the defendants. There was .a conflict of testimony, especially upon tlie first point; and the rule is well settled that where there is such conflict, where it does not clearly appear that the verdict is wrong — as that it is without or against testimony — no new trial •can he granted. (Briscoe v. Bronaugh, 1 Tex. R., 340.) From the facts, as they appear in the statement, I incline to the opinion that the conclusion drawn by the jury was erroneous; but this is not so manifest as to authorize their verdict to be disturbed. The testimony of tlie witness Morgan is distinct, that Mr. Smith ivas informed that the boy was a good axe hand, and that lie (Smith) agreed to hire the boy as an axe baud until the end of the year. Young Chance testifies that ho was not the agent to hire the boy; and that he did not inform Mr. Smith that ho wished the boy worked in the mill; nor did Mr. Smith say that he would work the boy where it suited him best. The testimony of young Chance is, in this particular, expressly contradicted by another witness; and, in opposition to the testimony of Morgan, it is proven by John G. Smith, Chat when Morgan said tlie boy was a good chopper, E. M. Smith replied, that if he suited best as a chopper lie would put him in the woods; if not, he would put him in the mill or wherever lie suited him. The .jury were tlie judges of the credit to be attached to these statements; and il the legal effect of tlie plaintiff’s testimony warranted a verdict in his favor, they could so find, notwithstanding tlie contradictory evidence of defendants. That tlie testimony of Morgan would, in law, sustain the verdict, is clear. He testifies that the slave was hired as an axe hand. It is true that the prima facie presumptiou would be, that a slave hired to assist in carrying on the business of a steam mill might be employed in any of tlie ordinary duties or services necessary to tlie successful operation of said mill; and this would be the case unless there was an express agreement to the contrary, or unless he were hired to perform some particular service. But if the bailment were for a particular purpose, if the negro, as in this case, were hired to perform the duties of axe band alone, then it is very clear that the defendants, by employing tlie property otherwise than as stipulated, are in law responsible for his loss, irrespective of the fact of whether they exercised due care and attention •or not. Tlie law presumes that the loss happened from the misuser of the property. It is said by jurists, and in adjudged cases, that there is, on the part of the hirer, an implied obligation not to apply tlie thing hired to any ■other use than that for which it is hired. If a horse be hired as a saddle horse, the hirer has no right to use him as a cart horse or as a beast of burden ; and if the thing is used for a different purpose, or in a different manner or for a longer period than that intended by the parties, the hirer is not only responsible lor all damages, hut if a loss occurs, though hy an inevitable casualty, lie will he responsible therefor. (Jones on Bailm., 68, 69, 121; 2 Ld. Raym., 915; Story on Bailm., sec. 413; 5 Mass. R., 104; 1 Const. R., So. Ca., 121; 1 Rice R., 182; 3 Smedes & Marsh. R., 129; 2 Rich. R., 613; 8 Humph. R., 413; 6 Ga. R., 218.) The wrong consists in the violation of the contract of bailment; and if a loss occur, the measure of damages for such wrong is the value ■of the slave or thing bailed.

Another point at issue was, whether the loss of the slave was attributable to the default or negligence of the defendants. At one period in the common law there was a difference, of opinion as to the degree of care and diligence tO' be exercised by the hire)- for the preservation of the property. In the case of Coggs v. Bernard, (2 Ld. Raym. R., 909, 916,) it was held by Lord Holt that the hirer was bound to the utmost diligence which the most diligent father of a. family uses. This was controverted by Sir William Jones, in his treatise on Bailments, who contended that, as the contract of hiring was one of mutual benefit, the hirer was bound only to ordinary diligence, and responsible, consequently, only for ordinary negligence; that he was required only to exercise the care which prudent meii, that is, the generality of mankind, exercised in keeping their own goods, (Jones on Bailm., 88; Story on Bailm., sec. oOS;) and this is now well settled to be the true exposition of the law. (Mims v. Mitchell, 1 Tex. R.) This doctrine is applicable as.well to bailment on hire of slaves as of inanimate or mere animal property. The degree of care and diligence varies according to the species of property over which it is to be exercised; but in all cases it must be the same which a person of ordinary prudence or discretion would exercise in relation to the particular tiling were it his own property. A slave is a rational being, capable, in ordinary cases at least, of taking care of himself, and may be expected to perform most of bis duties without constant supervision and control, or without (he necessity of being constantly watched or followed to keep him from running unnecessarily into danger. But lie ought not to be exposed to extraordinary hazard, although incident to the service, without necessity, and without such precautions, by instructions or otherwise, as circumstances may require, and as a man of ordinary .prudence would use, in exposing bis own slave to the same danger. And the bailor is under the corresponding obligation (which may be waived by special contract or notice) that the property hired shall be reasonably fit for the uses or purposes known to be intended. This subject is well discussed in Swigert et al. v. Graham, (7 B. Mon., 664,) and some of f he conclusions here stated are there elaborated and explained. If the issue between the parties was that of negligence alone, it appears that, if the verdict was tested by these principles, it couid uot be sustained. It is true that Morgan states that Smith admitted, in conversation, the deatli to have partly resulted from the carelessness of the engineer Banton. But the testimony is full as to the great degree of prudence and care exercised by E. M. Smith ; and that the boy bad been frequently warned by himself and others in his employment against the danger of carelessly going about the machinery, and that he was cautioned by Smith in tiie particular instance. If negligence, on the evidence, was attributable at all to the defendants, it was in not placing- banisters on each side of the wheel. This would render it, doubtless, more secure; but there is no evidence that any such precautions are usually taken by the owners of mills; in fact, all the evidence is to the contrary. Whether the defendants would or would not he liable for the want of this precaution, it would certainly be advisable, particularly where slaves are employed, that such safeguards should he used.

Note 79. — Smith v. Tooke, 20 T., 750.

Note 80. — Mills v. Ashe, 16 T., 295; Willis u. Harris, 26 T., 186.

Note 81. — Mitchell v. Mims, 8 T., 6; Mills v. Ashe, 16 T., 295; Robinson v. Varnell, 16 T., 382.

I do not deem it necessary to examine the cases in which it is held that the owner, having a clear knowledge of the defects or dangers of the machinery, or service to which he hires his slave, assumes the risk of accidents or injuries-occurring therefrom, (4 Port. B., 234;) and a further investigation of the rules on the subject of the care and attention to be exercised by the bailee becomes unnecessary, as, from the conflict of testimony on the first point at issue between the parties, the verdict must necessarily be sustained.

Judgment affirmed.  