
    
      Doctor Edward Sill vs. The So. Ca. R. R. Company.
    
    In dealing with slaves as passengers, a high degree of caution, diligent and circumspect demeanor, are demanded of rail road companies; but to make such a company liable, to the owner, for the escape and loss of a slave, carried as a passenger on their cars, without tire knowledge or consent of the owner, something more than a blameless and unwitting transportation must be shown, — where no intentional wrong is charged, negligence must be shown.
    Where a slave of the plaintiff, in company with a white man who assumed to be in charge of him, was transported as a passenger on the defendants’s cars, whereby he was enabled to effect his escape and became lost to the plaintiff, and in the action against the rail road company, the jury, by their verdict for the defendants, negatived the charge of negligence, the Court refused to disturb the verdict, all imputation of intentional wrong being disavowed.
    
      Before Wardlaw, J. at Richland, Spring Term, 1850.
    The report of his Honor, the presiding Judge, is as follows : “ Case against the defendants for wrongfully transporting Alick, a runaway slave of the plaintiff, without the permission of the plaintiff, whereby the said slave was enabled to effect his escape, and became wholly lost to the plaintiff: a count in trover added.
    “Alick was a likely mulatto slave of the plaintiff, twenty-five or thirty years old, skilled in the business of attending a drug store, who had been hired for the year 1847, to Toland & Curtis, druggists in Columbia, and was well known in Columbia to belong to the plaintiff. He was in place Saturday evening, 24th July, 1847 — next day, without permission from his owner or employers, he went on the rail road of defendants from Columbia to Charleston, thence in the steamboat Yanderbilt, to Wilmington, and thence to New York, whence he has not been regained, though the plaintiff has used all proper exertions.
    “ Augustus Eaton was born at the North — received a respectable education and was intelligent. He came twelve or fourteen years ago to Columbia — was bar-keeper at Thomas’s hotel, then at various places bar-keeper and clerk, became dissolute, and lived with a vile Avoman, kept company with negroes, and was notoriously without employment or the means of subsistence, although for several months, the last of his stay here, he was sober.
    
      “ Carrington was the clerk of the rail road company that kept the office for sale of tickets to passengers. He knew Alick and Eaton both Avell, and would not have sold a ticket to Alick Avithout a pass, or a ticket for Alick or any other slave to Eaton, without requiring Eaton to produce some authority. Southall was a laborer in the service of the company, whose business it was to check the baggage of passengers — he had seen Eaton about the streets shabby and destitute, but did not knoAV much of him. Dr. Davis was, from the beginning of July, 1847, or thereabouts, conductor of the train between Columbia and Charleston — Avas, in his business, faithful and discreet, but having resided in Charleston, he was very little acquainted about Columbia, and arriving late and departing early, had small opportunity for forming acquaintances there. He died since last term, Avhen he was in attendance as a witness in this case. Mr. Bollin, general agent, had superintendence of all the affairs of the company at Columbia.
    “ Sunday morning, July 25, 1847, Eaton was Avell dressed, and bought from Carrington, at the ticket office, tAvo tickets, one for himself, and one for a white girl of bad character that was Avith him,* whom, on the way, he falsely represented to be his daughter. Alick, or another mulatto slave not belonging to the plaintiff, that escaped with him, one or the other, Avas seen by Carrington to enter the car; but no enquiry on the subject was made by Carrington. Davis or Bollin. The rule had formerly been, that passengers were required to buy tickets before the departure of the train; but on account of the great rush frequently made at the last moment, the rule had been relaxed, and passengers at that time were permitted to enter without tickets, and pay their fare to the conductor on the way. Slaves, with passes, were often allowed to pay for themselves, and many slaves were transported that were paid for by their owners or other persons having charge of them.
    “ The death of Davis prevented exact testimony as to what occurred concerning Alick’s passage money, but it was admitted that, on the rail road, Eaton assumed to be in charge of Alick, and that in the manifest of the steamer Yanderbilt, Eaton caused it to be represented that he was agent of the plaintiff.
    “ I held that, on the count in trover, there could be no recovery without some proof of conversion, and that, on the other counts, there could not be recovery without proof of something justly blameable done by the defendants. The plaintiff’s counsel insisted that the carrying of the slave, without the permission of the owner, was, itself, an unlawful interference with the rights of the owner, which, without consideration of intention or of the circumstances that attended the interference, made the defendants answerable for the consequences that ensued; that if one of the wealthiest and most reputable men -in the community had taken the slave into the cars, claimed to be his owner and paid for him, and thus the slave had escaped, the defendants, by carrying in fact without the permission of the owner, and thus unwittingly doing him harm, would have been liable to make good the loss they had occasioned, and must have looked for indemnity to the person who imposed upon them. I overruled this doctrine, and held that the interference which would create liability must be wilful, officious, careless, or otherwise blameable, done with a knowledge or with just grounds for suspicion that it was contrary to the will of the owner. Information which an agent of the company possessed, I thought, would net charge the company with knowledge, unless the agent was in a situation which enabled him to use his information in the transaction as it was conducted or should have been conducted. The lax rules which prevailed as to the sale of tickets, and the transportation of slaves; the inattention which overlooked the singular fact that Eaton, professing to have charge of Alick, had tickets for himself and his girl, but none for Alick — the entrusting of the train and the sale of tickets on the way, to a conductor, who was a stranger to Columbia; the indifference manifested by the neglect of all inquiry at Columbia, or of passengers on the way, and the other circumstances which had been urged in argument to show culpable negligence in the defendants, were brought to the view of the jury; and they were directed to inquire whether such negligence had been shown. If the evidence of negligence was not discovered, they were directed to find for the defendants; if it was discovered, to find for the plaintiff; and, in the latter case, (as all imputation of intentional wrong was expressly disavowed,) they were directed not to exceed the real value of the slave, such as would have been found if without intentional wrong, but under circumstances that created liability, he had been killed at the time he effected his escape.
    
      “ The jury found for the defendants.”
    The plaintiff appealed, and moved this Court for a new trial, upon the following grounds, to wit:
    1st. Because the evidence having been full, clear and uncon-tradicted—
    1. That it was notorious in Columbia, that the slave Alick, belonged to the plaintiff.
    2. That it was equally notorious, that Eaton was a vagabond, and no better than a vagrant.
    3. That the said slave was taken from Columbia to Charleston by the defendants on their rail road cars, without the knowledge or permission of the plaintiff, or of any agent of the plaintiff.
    4. That two, at least, of defendants’s agents at the Columbia depot knew the worthlessness of Eaton, and that the slave belonged to the plaintiff.
    5. That no ticket was procured at the ticket office for the slave, although Eaton got one for himself, and one for the white girl with him.
    6. That defendants’s agent, Mr. Carrington, whose business was to sell tickets, would not have sold one for the slave, either to him or to Eaton.
    7. That although Davis, the conductor, was a stranger, yet he made no inquiry whatever of Mr. Carrington or other agent of the defendants respecting the slave.
    8. That other circumstances of suspicion and negligence also existed. The verdict of the jury, finding for the defendants, is contrary to the decided weight of evidence, showing clearly that, under all the facts and circumstances, the defendants and agents were guilty of negligence, as well as to the law applicable to the case.
    2d. Because, it is respectfully submitted, that his Honor, the presiding judge, erred in laying down the following points of law, and giving the following instructions to the jury, to wit:
    1. That, if there be no negligence on the part of defendants, they cannot be held liable.
    2. That an interference with the slave by the defendants, without a knowledge that the owner did not consent, would not render defendants liable.
    3. That all the cases cited for the plaintiff involved knowledge on the part of defendants that there was no consent of owner.
    4. That the ownership of the slave, or the charge assumed over him, is not a matter that the rail road company would have a right to inquire into, unless there be circumstances to excite suspicion.
    5. That plaintiff cannot recover, unless there were circumstances which ought to have excited suspicion.
    6. That the fact that some officer of the company knew Eaton and the slave, and would not have trusted Eaton, is not enough, unless it was some agent whose business it was to attend to the matter, although Mr. Carrington was that very agent.
    
      Gregg & Gregg, for the motion.
    
      W. F. DeSaussure, contra.
   Curia, per

Withers, J.

To the professional carrier of passengers, the stringency of the common law rule of responsibility, in its full extent, as it concerns the common carrier of goods by land or water, has not been held applicable by the Courts of England or America. Few cases, however, have been decided upon the precise point presented here, that is to say, whether a carrier, such as the defendant, is liable to the owner for receiving and transporting his slave, (who, though property, is also a being of intelligence and will, capable of conceiving and executing a device,) without a written authority from his master, notwithstanding he assumed to be under the dominion of a white man present, and the white man asserted dominion over him. Indeed, it cannot be said that any case has been found in the law books of the slaveholding States, (and of course none need be sought elsewhere,) that can be regarded as an admonition, or a guide to us upon this point.

In Kentucky, (Johnson & Co. vs. Bryan, 1 B. Munro, 292,) a stage proprietor was made liable for the act of his agents, in receiving and transporting a slave from Paris to Maysville, whereby he escaped to Ohio, and was lost to his owner. But that action was brought under a Statute of Kentucky, which provided as follows, to wit: — “ that it shall be unlawful for the owners and proprietors of any mail stage or other coach, or rail road car, to suffer or permit any slave or slaves to go as passengers therein, without a written request of their owners, or in company of their owners” — then fixing a specific penalty, besides declaring a liabitity for the full value of such slave escaped, as well as costs and damages incurred in attempting the recovery of a slave. In that case, too, there was no white person enao-ed in deluding the agents of the defendants by a claim of ownership or dominion over the slave — nor did he present any guise of his true purpose in any form. The Kentucky Judge, who delivered the opinion, expressed his impression that, at common law, the defendant would have been regarded as liable, in which impression we should be ready to agree with him; but the case was rested upon the statutory provision.

A like case was adjudged in Missouri, (4 Missouri Rep. 550,) but that also stood upon a provision by statute of similar import.

In North Carolina, (Robards vs. McLean, 8 Iredell, 522,) a question went up on appeal, upon a point in the law of evidence; but the defendant escaped, upon a case to this effect: his driver (of a mail coach) overtook the plaintiff’s slave, on the .road from Granville to McDowall county. He transported him to Greensboro’, whence he made his escape, and was wholly lost to his owner. It appeared from parol evidence, held to have been admissible, that the negro was going homeward to his master, and by his direction and arrangements, with a written note addressed to a witness examined, wherein that witness was requested, if the negro’s mule should give out, to let him have a horse and ten dollars, and to give him any other assistance he might require. But no authority whatever was given by the witness to the stage-driver to do any thing in relation to the negro. As already stated, the plaintiff lost the verdict — but the point urged in our case, was not presented on appeal. If urged below, it was urged in vain, and not carried up to the appellate jurisdiction.

We get little light, therefore, by any research permitted by our opportunity from any adjudicated case; and are, consequently, remitted to such as we can borrow from our own reasoning upon general principles; for our own cases teach no more, than that, in the process of carrying a slave, on land or water, the severity of the* rule as to the transportation of inert matter, by a common carrier of goods, shall be so far relaxed as to conform to the material consideration that the slave has an uncontrollable agency in counteracting the highest diligence of the bailee, and may rush into injury and destruction in spite of all caution: (Clark ads. McDonald, 4 McC. 223,) that a bailee shall be held accountable, absolutely, if he disregard the true import or express restrictions of the bailment, (Duncan vs. R. R. Company, 2 Rich. 613;) that the officious interference with or use of the property of another, will render the party guilty thereof liable— (Wright vs. Gray, 2 Bay, 464.) This case cannot be made to rest on any of those cited ; nor upon the principle announced as that on which the case of Harrison vs. Berkely, (1 Strob. 525,) rested, which was, that Berkely had done an act from which damage ensued, which act was prohibited by law to be done at all. In fact, the leading question in that case appears to have been, whether the damage complained of was sufficiently proximate or too remote.

The doctrine candidly announced by the defendants’s counsel is, that a want of authority from the master, and a prohibition of the act by him, are equivalent propositions. This position would discard all question about negligence, and amounts to an affirmation that a rail road company, engaged in its lawful and compulsory duties, are guarantors against every possible fraud, that may be executed by any one, against the rights of property of a slave-owner; that the company shall stand towards him as a Bank, being the depositary of his money — responsible against the most astute forgery of his name.

If we were to hold such a rule of law, there would be presented an incongruity involving a distinction without a difference in principle. For example, the carrying a slave is the carrying a passenger, though he is also property: Boyce vs. Anderson, 2 Peters’s (U S.) R. 150: a less degree of responsibility is exacted than in the case of a bale of goods, in regard to the course of the journey; a less degree as to all passengers ; why should we hold a more rigid rule in regard to the act of receiving the negro on a car, than that which fixes the care and diligence exacted in the process of his actual transportation ? If the rule urged upon us were adopted, it would seem to make the transportation of slaves by the rad road quite an impracticable business. We should exact an investigation of title to such property upon a peril to the company, which would compel them either to decline a business that the law commands them to perform, as public carriers of passengers, or else to encounter losses that might be oppressive, if not ruinous. If the plaintiff had been travelling with the servant, who has escaped, in Georgia, where he may have been unknown, and he had been challenged as the owner by the conductor of a train of cars, it is most probable he could have produced no other evidence of ownership than was presented by Eaton in this case to Dr. Davis — that is, the claim of dominion asserted by him and corroborated by the slave. If the conductor, in such case, should be supposed to decide against the plaintiff’s claim, and reject his slave as a passenger, whereupon the slave was lost to the plaintiff, his case for damages would certainly not be weaker than the present.

Although such a course of reasoning, ah inconvenienti, is not a conclusive test of legal principles, yet, upon remembering that the whole doctrine of the law of carriers has been, in great degree, planted upon such a basis, it furnishes a medium, not inappropriate, through which we may look at the question before us. It would be easy to pile up suggestions drawn from such a source.

It must, therefore, be a question of negligence. We are prepared to affirm that we consider it a legal duty to demand of rail road companies a high degree of caution, diligent and circumspect demeanor, in dealing with slaves as passengers ; that this duty is enforced by the facility of escape which their mode of conveyance would offer to absconding slaves by the rapidity of a daily journey between distant points, especially if a sleepless vigilance should give way to any degree of carelessness; and that if the plaintiff, in this case, had obtained the verdict, we are not prepared to say it would have been disturbed. And it may be added that, but for the fact already adverted to, that a white man claimed dominion over the negro, and the latter responded to the claim, which there is no reason to affirm the conductor in charge had the personal knowledge of the white man, (though others had) that should have led him to question and suspect, we should probably have been dissatisfied with the verdict, if, indeed, it would, in such case, have been rendered.

The jury were led to the inquiry, whether there had been, on the part of defendant, an interference with plaintiff’s slave— ‘•'wilful, officious, careless, or otherwise blameable, done with a knowledge, or with just grounds for suspicion, that it was contrary to the will of the owner.” All the circumstances, developed by the evidence, in behalf of the plaintiff’s view, were arrayed before the jury, with illustrations, which we do not deem justly exceptionable, designed to elucidate the proposition above stated. The tribunal to settle such a question has reached a result unfavorable to the plaintiff; and while we lament that his rights have been so successfully invaded by so bad a man as Eaton and so irresponsible, still we do not feel warranted to visit the misfortune upon a party who, in the opinion of a jury, has been no more than a blameless, unwitting instrument towards the perpetration of a detestable crime.

The motion must, therefore, be refused.

O’Neall, Evans, Wardlaw and Fb,ost, JJ. concurred.

Motion refused.  