
    
      Horatio McClenaghan vs. Jacob Brock.
    
    The common law rule, that carriers of goods are responsible for all losses or injuries except such as arise from the act of God, or the enemies of the country, applies to carriers by water as well as by land.
    Carriers of passengers are liable only on the score of negligence; and slaves are considered as passengers.
    The owner of a steam boat carrying a slave as a passenger, held not to be liable for an injury done to the slave by the accidental discharge of a gun in the hands of a free negro, who was employed as a servant on the boat — the free negro and the slave being, at the time of the accident, on board a lighter alongside of the steam boat.
    A master is not responsible for the act of his free servant done outside of his employment.
    In general, questions of negligence, in the performance of a bailment, are to be decided by a jury; but -where the facts, in evidence on the part of the plaintiff, fail to shew any negligence, there is nothing to go to the jury, and the plaintiff may be nonsuited.
    
      Before Withers, J. at Marion, Fall Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “ The action was in case, for the recovery of damages, arising from a gun-shot wound received by Richard, the plaintiff’s slave, while on board the steamer Darlington, of which the defendant was captain or master, and which was navigated by him, on the Pee Dee -river, in a business carried on between Cheraw and Charleston, stopping at the intermediate landings. The wound in one leg, from the contents of a gun, was so severe as to require immediate amputation of that limb — and it was effected as soon as practicable, on the night of the day when the injury was received, by the advice of sundry physicians, who were called to the case.
    “ The evidence for the plaintiff tended to show that he had taken the boat at Charleston, and had placed Richard (with some other slaves) on board for transportation to his plantation on Pee Dee, which was not far below Marr’s Bluff, on the western side of the river; that a lighter was taken in tow by the Darlington, not far below the plaintiff’s plantation, and was attached to the boat on the weslern side; that the passengers stepped from the boat upon the lighter when thejr pleased, and that Richard was on the lighter when he was wounded; that when the boat approached the plaintiff’s landing, the pace of the Dar-lington was slackened for a moment, the overs,eer of McClene-ghan standing on a knoll there surrounded by water; that the boat proceeded, however, as the water in the river was high, and with a view, probably, of landing the plaintiff and his negroes, with others, at Marr’s Bluff, as a much more convenient place of delivery than the plaintiff's landing; that between those points, and within one or one and a half miles of the Bluff, a discharge of a gun was heard, on the side of the boat to the westward where the lighter was attached, and where Henry, a bright mulatto. (a free negro, I presume,) was employed on the trip, acting in the capacity of second engineer ; that immediately the negro, Richard, was seen wounded, on the lighter; the mulatto was in a state of agitation and apparent anxiety, and at the Bluff, with a gun in his hand, was showing a witness how the accident occurred ; that a double barrel shot-gun had been seen near his position in the course of the trip, and he had occasionally used it in shooting sea-fowl. I have but little doubt the jury would have concluded that the injury was inflicted by this gun in the hands of Henry, the mulatto, and that he was employed on the boat as superintendent of one of the engines.
    “It appeared from the testimony of Boykin Witherspoon, that the boat stopped at Crawford’s landing, (which is between the plaintiff’s and Marr’s Bluff, and from six to ten miles below the latter, as another witness said,) and that the plaintiff might have landed at Crawford’s landing, but while at or near the place, the defendant advised the plaintiff to proceed to Marr’s Bluff and land there, to which the plaintiff appeared to accede. Mr, With-erspoon thought the plaintiff’s slaves were on the steamer till after passing Crawford’s landing, when the boy went op the lighter, by whose orders he knew not, but he supposed he had followed the example of white passengers, and went on the lighter alongside, “rambling about for amusement,” and not for the purpose of landing; he had no idea the boy was ordered there by any one: he thought a position on the lighter as safe for a passenger as one on the steam boat; that the colored man, Henry, acting as second engineer, was intelligent, civil and humble in his demeanor, and seemed greatly distressed and excited, when Mr. Witherspoon reached the wounded negro, soon after the explosion of the gun was heard.
    “ The remainder of plaintiff’s testimony related to the character of the wound, the necessity of amputation, the employment of the Darlington in the business of a common carrier in transporting merchandize and passengers, the expenses in the treatment of the wound, encountered by the plaintiff and the great reduction in the value of the boy, Richard.
    
      “ Such was the case presented by the plaintiff, McCleneghan ; whereupon, a nonsuit was moved on the part of Brock, the defendant, upon the grounds:
    
      “ 1st. That Brock was responsible, not as a common carrier of merchandize, but only upon the law applicable to the carrier of passengers, which required some proof of negligence as producing the disaster.
    
      “ 2d. That the evidence adduced established a case in which Brock must be allowed to stand upon the law applicable to the liability, or the reverse, of a master for his servant, or else of a principal for his agent; — and the plaintiff’s testimony had shown that the damage had resulted from an act of trespass, by a servant or agent, wholly unauthorized by the master or principal, expressly or by implication, and wholly beyond and distinct from the line of employment or duty prescribed in fact or by inference to the agent of the mischief; and hence, that such agent was, in the present case, alone and exclusively responsible to the plaintiff.
    “ For the plaintiff it was insisted, that admitting the authority of our case of Clark ads. McDonald, (4 McCord, 223,) to the extent of the real point adjudged, and the rules prescribed, by modern writers, for the case of carriers of white and free passengers, yet that a negro slave should not be held to be on the footing of a passenger, but regarded as property, and a carrier should be liable for an injury to him, as he would be for the like to merchandize, with this qualification, to wit, that he might show, in defence, some act of the negro, as a moral agent, which produced the injury.
    “ Though not insensible to the good sense \v hich seemed to be contained in the proposition for the plaintiff, on a consideration of policy, I thought the law, so far as yet established, was with the defendant, and accordingly I rendered a judgment of non-suit.”
    
      The plaintiff appealed and now moved this Court to set aside the nonsuit, on the following grounds, to wit:
    1st. Because a common carrier is liable for all injuries happening to negro slaves, while in his custody for carriage, except such as result from the act of God, from the act of enemies of the country, from the fault of the party complaining, or from the mere voluntary act of the slave; and when it is proved on the part of a plaintiff, as was done in this case, that slaves have been delivered to such carrier, and have been injured while in his possession, the plaintiff is entitled to go to the jury, the burden being upon the defendant to trace, by evidence, the injury to one of those causes which are, in law, sufficient to exempt him from liability therefor.
    2d. Because his Honor held that the carrier is liable for the safety of slaves, placed in his custody for carriage, only to the extent to which a passenger carrier is liable for the safety of ordinary passengers, and that the injury complained of must have resulted from some degree of negligence or want of care on the part of the carrier; which, it is submitted, was error.
    3d. Because, if the liability of passenger carriers is the legal measure of liability in the case of carriage of slaves, it is respectfully submitted, the carrier permitting a free negro in his service as such carrier, to have the use of fire-arms, at his pleasure, and for his amusement, on board of a steam boat, is an instance of that degree of negligence which is sufficient in law to make the carrier liable for any injury to a passenger occasioned by such fire-arms in the hands of a free negro; and there was, in this case, evidence of this state of facts, which ought to have been submitted to the jury.
    4th. Because his Honor held that the liability of a master carrier of passengers,-for the acts of his servants and employees to his passengers, is no greater nor other than the liability of masters in general for the acts of their servants to strangers; whereas it is submitted, such master carriers are liable for injuries to passengers, resulting from the general carelessness and negligent habits of their servants and employees, when the act occasioning the injury is done while in the service, though it be not in pursuit of the service, of the master.
    5th. Because the burden is upon the carrier to shew that the servant, by whose agency injury has been done, is careful and trustworthy in his general character and habits, and generally that the act was not done under circumstances rendering the carrier liable.
    Dargan, for the motion.
    The defendant is liable as a common carrier. As a general rule, carriers are liable for all losses which are not attributable to the act of God or the enemies of the country. The exceptions are where the loss arises from the natural deterioration of the article; or, where all proper care is taken, and the loss is attributable to the act of the slave or animal carried. Cited and commented on 5 Strob. 114, Me 'Jail vs. Brock; Ang, on Car. §210, 214; Rutherford vs. Me Gowen, 1 N. and McC. 17; 2 N. and McC. 19 ; 1 McC. 157 ; 4 McC. 223 ; 4 Rich. 154; 2 Rich. 613 ; lb. 455 ; Boyce vs. Anderson, 2 Peters, 150 ; 4 Porter, 234; 4 Rich. 468. Slaves should not be put on the footing of ordinary passengers ; they aie subject to the orders of the carrier, who, for the time, is their master. On the 4th and 5th grounds, he cited Angel on Car. § 10 ; 193, note 3; 521 et seq.; 2 Kent Com. 600 ; 1 Green. Ev. § 221; Story on Bailm. §601-2, 507; Story on Agency, §314, 400, 48 note 2 ; Dud. R. 265, 272 ; 2 Rich. 285 ; Ang. on Car. § 573. If the defendant is to be regarded as a passenger carrier, then he is liable for slight neglect, and the question of negligence should have been submitted to the jury. Ang. on Carriers. § 604, note 5.
    Munro, contra.
    Slaves are not chattels — they are passengers; and a carrier is not liable for any injury to a passenger outside of the contract. Cited Story on Bailm. § 499, 590, 601,602; 13 Peters, 181; 2 Camp. 79; 2 Kent 600 notés; Boyce vs. Anderson, 2 Peters, 150. From the plaintiff’s own showing, there was no negligence on the part of defendant. Then was defendant liable as master for the act of his servant, the mulatto, Henry? Story on Agency, § 308-9, 310, 318; 2 Kent Com. 259 ; 1 East, 106; 1 C. and M. 29 ; 1 Amer. Lead. Cases, 465 ; 4 Rich. 329; lb. 426; 2 Green. Ev. § 256.
    
      Inglis, in reply,
    considering the first and second grounds of appeal together, adverted to the general rule of a common carrier’s liability, and the reasons thereof, and argued: 1. That negro slaves, having the legal characteristics and incidents of personal chattels, and being articles of commerce, are within the terms and within the reason of the general rule; and that the rule, in its application to this class of chattels, ought not to be relaxed or modified, unless for very good reasons, and then only so far as those reasons require; and in this connection cited Coggs vs. Bernard, 1 Smith’s Lead. Cases, 82; McCall vs. Brock, 5 Strob. 119 ; Story’s Bailments, sec. 464, 465, 467, 488; Angel on Carriers, sec. 148-150; Domat, sec. 529, 1166, 1175, 1180; Jones on Bailments, pp, 103, 104; Riley vs. Horne, 5 Bingh. R. 217, (15 Eng. Com. L. 422); Reaves vs. ' Waterman, 2 Speers R. 206; 7 Stat. So. Ca. 397; Taylor’s Elem. of Civil Law, 429. 2. That the reasoning, in reference to the slave’s powers of volition and locomotion, his intelligence, &c. on which the rule contended for, on the part of the defendant, and stated in the second ground of appeal, rests for support, does not require nor justify such an entire departure from the rule of liability in regard to other chattels, but is fully met and satisfied by the modification of the general rule, which is conceded in the first ground of appeal ; and in this connection cited and commented on Boyce vs. Anderson, 2 Peters U. S. Rep. 150; Williams vs. Hitchcock, 4 Port. Ala. R. 234; Clark vs. McDonald, 4 McCord’s R. 223 ; and urged the affirmation by the Court of the rule contended for, on the part of the plaintiff, as the only one which regarded the slave in his double legal character of person and chattel, and provided as well for the master’s right of property as for the slave’s right of person. Further, on the first ground, in reference to the burden of proof, cited Story Bailm. sec. 529 ; Angel on Carriers, sec. 202, 472, 569; Swindler vs. Hilliard £f Brooks, 2 Rich. pp. 305-309 ; Singleton vs. Hilliard & Brooks, 1 Strob. 218.
    On the third ground of appeal, as to the rule of liability of passenger carriers, cited Story Bailm. sec. 601; Angelí on Carriers, sec: 523,568; 2 Greenl. E v. sec. 221; Farwell vs. B. & W. Rail Road Co. 4 Mete. R. 49 — That free negroes are unfit to have the uncontrolled use of fire arms ; cited 7 Stát. So. Ca. 474 — that defendant’s permitting such use, in the circumstances of this case, was a negligence, in breach of his public duty as a passenger carrier, for the consequences of which he is legally liable ; cited Pothier on Olig. pp. 55-57, Pt. 1, ch. 1, sec. 2 § 2. Ibid, p. 236; Pt. 2, ch. 6, sec. 8, art. 3 § 5 ; King vs. Ford, 1 Starkie R. 418, (2 Eng. Com. Law R. 453) — as to the legal connection between defendant’s negligence and plaintiif’s damage, cited Wallace's note to Coggs vs. Bernard, 1 Smith’s Lead. Cas., 33; 'Law Libr. p. 487; Bird vs. Holbrook, 4 Bingh. 628, (15 Eng. Com. Law R. 91); Lynch vs. Nurdin, 1 Adolp. & Ellis R. N. 5, (41 Eng. Com. L. R. 422); Harrison vs. Berkeley, 1 Strob. R. 529; and commented on Holmes and others vs. City Council of Charleston, 4 Rich. 426.
    On the fourth ground of appeal, argued the liability of passenger carriers for the acts of employees to the extent claimed— on the authority of Angel on Carriers, sec. 540-548, and from the analogy of the civil law rule, in reference to carriers, innkeepers, &c. and the common law rule in relation to inn-keep&rs, citing Story Bailm. sec. 464, 470-472 ; Jones Bailm. pp. 93, 94; Domat, sec. 529, 1175-1178, 1181; Cooper’s Justinian, Lib. 4, Tit. 5, sec. 3 ; Calye’s case, 8 Coke’s R. 32; 1 Smith’s Lead. Cas. 47.
    On the fifth ground of appeal, cited' Angel on Carriers, sec. 569; Danner vs. Rail Road Company, 4 Rich. R. 329.
   Curia, per O’Neall, J.

The liability of carriers of goods, both by land and water, in this State, has been placed, for many years, on the same footing which had been established by the immemorial usages of the Kingdom of Great Britain.

In our earliest cases, a distinction was attempted to be made in favor of water carriers. In 1807, in Eveleigh vs. Sylvester, (2 Brev. 178,) the Court said, “It had been determined by the Courts some years ago, that the doctrine of the English law, in regard to common carriers, does not apply, in its full extent, to carriers in boats on our rivers. (That this class of carriers are not answerable for accidents, against which ordinary foresight, care, diligence and skill, such as are usually employed and exerted, by men of ordinary care and prudence, in their own affairs, are insufficient to protect them.” In that case, the boat was snagged in the usual channel of the Santee river. The particular peril, encountered in that case, was preserved, as a means of exempting a boatman from liability; but the doctrine of the case -was fortunately forgotten, in the long sleep of thirty-two years, which it enjoyed before publication. In Harrington vs. Lyles, 2 N. & McC. 88, (decided in 1819,) Judge Johnson tells us, it was with difficulty he could bring his mind to adopt the common law rule of the liability of carriers. If he had been informed, truly, of the doctrine of Eveleigh vs. Sylvester, he would, with all his great powers and authority, have enforced and maintained it; but instead of it, he referred to Eveleigh vs. Sylvester as authority for the common law rule, in its application to boatmen, and decided that case accordingly. In Smyrl vs. Niolan, 2 Bail. 421, the same rule was recognized and enforced. In that case, the peculiar peril creating the exemption in Eveleigh vs. Sylvester was placed upon its proper ground. It had been previously, in the Steam Boat Company ads. Bason, Harp. 262, put down, as an additional exception, such as could not “be guarded against by human skill and prudence.” In Smyrl vs. Niolan, it was placed as actus Dei, if a boat pursuing the usual channel of a river runs upon an unknown snag.” In Patton vs. Magrath & Brooks, Dud. 159, the liability of steam boat owners and masters, as common carriers, was fully established, and they were denied any exemption from perils arising from fire, in consequence of their boats being propelled by that element. So that the whole class of carriers of goods by land, or water, are now governed by the common law rule, that they are insurers against all losses or injuries which may arise from their transportation, except such as are the result of the act of God, or the enemies of the country.

In Clark ads. McDonald, 4 McC. 223, it was ruled, that a carrier, the owner of a steam boat, was not liable for a slave, as he would be for a bale of goods. It was further ruled, in that case, that, if the loss arise from the act of the slave, such as not escaping f.onr under the deck of a steam boat, which had grounded, and which filled with water, where such escape was practicable, plain, and easy, the carrier would not be liable.

It did not. in that case, enter into the mind of the Court, that slaves, as human beings, must be considered as passengers; and that, so considered, the carrier was only liable on the score of negligence. That this is the true view, is apparent, the moment it is presented. For a slave’s transportation, by land or water, is not paid for by either weight or measurement. He is not stowed away as goods. He eats, and sleeps, and has locomotion, and must be provided for accordingly. These attributes do not, however, elevate him above the brute, which stands in a stall, or is secured in a cage. He has, however, reason. In this respect, however degraded his caste, he is far elevated above the brute creation ; and, as a man, he is to be carried and treated far differently from goods, or brutes. He is therefore paid and cared for as a passenger, and it is in this character that the carrier’s liability is assumed, and is to be enforced. Such was the point of view in which the Court regarded the slave of Dr. Sill, in the case of Sill vs. The So. Ca. R. R. Company, 4 Rich. 154, and that of passenger carriers ” was the liability which the Court regarded the defendants as incurring in that case. Id. 155.

Passenger carriers, Mr. Story tells us, (Story on Bail. § 601,) are not, like common carriers, insurers against all injuries, except the act of God, or the .public enemies, and are only bound to carry safely those who commit themselves to their care, “as far as humect care and foresight will go.” In section 602, he gives the consequence of this rule, that passenger carriers are not responsible for accidents where all reasonable skill and diligence have been employed.

The defendant, although a common earlier as to the goods with which his boat was laden, was also a passenger carrier as to the plaintiff and his slaves. As to them, he was bound to carry each and all of them safely and securely, as far as human care and foresight could go. In what has he failed to perform this duty ? is the enquiry before us.

The slave of the plaintiff was wounded in one leg, so severely as to render amputation necessary: — this condition of the property would have cast upon the defendant the duty of shewing that it arose from no want of diligence on his part: but the plaintiff’s proof shewed that the slave was injured on a lighter alongside the boat, by the firing of a gun in the possession of the second engineer, the mulatto, Henry. How this can be considered negligence, on the part of the bailee, I cannot conceive. The slave’s own will and act placed him in the posilion where he received the injury. His place was on the steam boat; if he had been there, he would not have received the injury. It was therefore the consequence of his own act, and for it the defendant was no more liable than the defendant in McDonald vs. Clark.

So, too, how can an act of one of the defendant’s servants, outside of his employment, and in no way connected with it, be considered as the neglect of his bailment? If the mulatto, Henry, in the management of the boat, or engine, had, from want of skill, or negligence, caused the injury, then the, defendant would have been most clearly liable: so, too, if he were a slave, and had wilfully mismanaged either, and thereby had caused the injury, I should have held the defendant liable. But if he was a free man, as we understand was the fact, then the defendant would be no more liable for his wilful act, than he would be for the act of a white servant. Both are sui jurifi: both are legally capable of accounting for a tort civililer: a slave is not: that makes the distinction. Moore vs. Drayton, Parker & Co. vs. Gordon, Dud. 268, 270, et seq.

The injury here has no relation whatever to the boat: it arose from the accidental discharge of the gun, in the hands of the mulatto, Henry. It. may be that he is liable in trespass. So. too, perhaps, the defendant would have been, if the injury had proceeded from the discharge of the gun, in his own hands. But even then his liability would have been immediate and personal, not consequential and relative. His liability would have arisen, in such a case, from his tort, not from his bailment.

It is true, in general, questions of negligence, in the performance of a bailment, are to be decided by a jury. But where the facts, m evidence, on the part of the plaintiff, fail to shew any negligence, whereby the bailee should be charged, in such case, there is nothing to go to the jury: the law steps in, and declares that the plaintiff is not entitled to recover. A nonsuit was therefore properly ordered, and the motion to set it aside is dismissed.

Evans, Withers and Whitner, JJ. concurred.

Frost, J. dissented.

Motion dismissed.  