
    Wm. R. Josey vs. The Wilmington and Manchester Railroad Company.
    
      Evidence — Negligence—Witness—Bond of Indemnity— Damages — New Trial.
    
    In case against a Bailroad Company, for carrying off plaintiff’s slave without Ms knowledge or consent, mere proof of transportation is itself sufficient evidence of negligence to throw the onus on the defendants.
    "Where a witness is interested and a release will make him competent, such release must be given, and a bond of indemnity from a third person will not answer the purpose.
    In case against a Bailroad Company for carrying off the plaintiff’s slave, the value of the slave is the highest measure of damages.
    New trial granted for excessive damages.
    BEEOBE G-LOVEB, J., AT SUMTEB, SBEING TEEM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ This was an action on tbe case to recover damages for tbe loss of a negro woman named Bose, alleged to bave been conveyed by the defendant’s cars from Sumter District to Kingsville, in Bicbland District, where she was last seen in August or September, 1856.
    “ Tbe night before she was carried by tbe cars, Bose was seen at Manchester, and tbe next morning she applied there for a ticket to go to Kingsville which was refused by tbe agent, because she produced no authority from her owner for that purpose. She was seen on defendant’s cars between Green Swamp, near Sumterville, and Kingsville, and at tbe latter place she got from tbe cars and remained there a day or two, when she disappeared.
    
      “ J. E. Ivey, tbe conductor of tbe train on wbicb Eose was carried, was offered as a witness, and an .objection to bis competency was sustained on tbe ground of interest. No release was proposed, but tbe defendant’s counsel offered to give tbe witness a bond, wbicb I declined, unless by tbe consent of tbe plaintiff’s counsel.
    “ I held tbe following questions admissible. Alfred Scarborough was asked, at wbat amount be would estimate tbe damages to tbe plaintiff by tbe loss of Eose — and John C. Prierson was asked, bow much in damages it would take to restore tbe plaintiff’s loss. Tbe former answered four hundred dollars — that it was tbe only negro tbe plaintiff bad, and although be would not give four hundred dollars, yet a man that wanted such a negro would. Tbe latter said three hundred and fifty dollars or four hundred dollars, and added, that be thought she was worth that.
    
      “ It was in connexion with defendant’s negligence in permitting Eose to be conveyed to Kingsville that Danner's case was referred to, and tbe jury was instructed, that if she was carried without her owner’s permission, negligence would be presumed, and if she was lost tbe defendant was liable. j
    “ Tbe jury found for tbe plaintiff three hundred and sixty-six dollars and sixty-six cents.”
    Tbe defendants appealed, and now moved this Court for .a new trial, on tbe grounds:
    1. Because bis Honor charged tbe jury that tbe principle ruled in Danner's case applied to this action, and that tbe onus was thrown on tbe defendants to rebut tbe presumption of negligence on their part in tbe particular case.
    2. Because tbe testimony of tbe proposed witness, Ivey, (conductor) should have been received, tbe defendants offering to give him bond and security to be approved by tbe clerk, and accepted by bim, to indemnify bim against any loss wbicb might aecrne to bim by reason of tbe verdict sought to be recovered against tbe Company.
    3. Because bis Honor ruled as competent to tbe witnesses, Scarborough and Frierson, tbe following question, “What would you estimate Josey’s damages at in consequence of the' loss of tbe negro ?”
    4. Because tbe verdict was excessive, and as to the amount against tbe law and evidence.
    
      Haynsworth, Moses, for appellants,
    cited Danner's case, 4 Rich. 329; McClenaghan vs .Brock, 5 Rich. 17; Sill vs. So, Oa. R. R. Company, 4 Rich. 154. On tbe offer to indemnify, tbe witness should have been received, 2 Carr. & P. 65; 12 • Eng. C. L. R. 22; 12 Eng. C. L. R. 279 ; 4 0. & P. 256; 19 Eng. C. L. R. 256; Ohafee vs. Thomas, 7 Cow. 358; Lahe vs. Auborn, 17 Wend. 18; Rent vs. Raiser, 3 T. R. 33; 5 T. R, 578; 2 East, 461; 1 Phil. Ev. 69; 1 Stark. 120; 13 Mass. R. 201; 8 Ired. 522. Tbe questions propounded to tbe witnesses were incompetent. ’ Tbe witnesses should depose to facts, but here tbe opinions of tbe witnesses were given. Lincoln vs. Saratoga and Schen. R. R. Company, 23 Wend. 425; O'Neall & Chambers vs. So. Ca. R. R. Company, 9 Rich. 465.
    
      Spain, Richardson, contra.
    Tbe principle of evidence contended for, as applicable to this case, is, that where a slave is carried off without tbe knowledge or consent of tbe owner, negligence will be presumed, and tbe onus is on tbe defendant to rebut it. Tbe principle is not new. 2 Green. Ev. § 222 ; Story on Bail. § 601, 602; Christie vs. Griggs, 2 Camp. 79. Ivey was incompetent. Gas Light Company vs. City Council, 9 Rich. 342. Tbe value of tbe property was an important element in considering tbe question of damages and tbe value of property is a matter of opinion. Smith, Wright & Go., vs. Campbell, Eiee, 352.
   Tbe opinion of tbe Court was delivered by

Whitser, J.

Tbe judgment of tbe Court in remanding tbis case for a new trial, will be rested on tbe single ground in wbicb there is entire unanimity, reserving for another occasion, when it may arise, some of tbe points drawn into controversy.

A running commentary on tbe different grounds is, however, due to tbe argument submitted on each side.

The instructions of the presiding Judge on tbe question of negligence, is approved by tbis Court. That interference with a slave wbicb creates liability on tbe part of a Railroad Company, as held in Sill vs. S. C. R. R. Co., 4 Rich. 154, is when “ wilful, officious, careless, or otherwise blameable, done with a knowledge or with just grounds for suspicion that it was contrary to tbe will of tbe owner.” To tbis rule has been added in tbis case if tbe slave was transported without tbe owner’s permission, and loss has resulted, negligence should be presumed. A proper security for tbis species of property, tbe high degree of caution indispensable on tbe part of tbe Company, in tbe proper observance of wbicb tbe means for adequate explanation of attendant circumstances, shifting tbis presumption, should always be at band, all combine to justify such a rule. Tbe onus was properly on tbe company. But whilst tbe onus is thus cast, and for tbe reasons wbicb influence, tbe rigor of tbe rule wbicb at tbe next step excludes tbe employees on tbe score of incompetency, is felt by tbe Court. Tbe ruling on circuit, it must be conceded, was in conformity with tbe case in 9 Rich. 342, Gas Light Company vs. City Council. It remains to be seen whether tbe Court on some other occasion will not modify tbe rule.

The objection was not removed by tendering the bond of indemnity by a stranger, even though approved by the clerk.

A bond from the company of course would have been equivalent to a release, and would have removed the objection. In another class of cases where important testimony cannot be otherwise secured, it may be that such a rule should be adopted.

The diversity of opinion which exists in reference to the third ground, would deprive any judgment now rendered on the point involved, of any value to the profession. It is proper to add, that the views entertained by some members of the Court have had the effect to induce a more ready concurrence in the judgment which is announced on the last ground.

We are constrained to say, that the rate of compensation fixed by the jury, finds nothing in the evidence to sustain it. The views that should influence in such cases are sufficiently presented in the case of O'Neall & Chambers vs. S. C. R. R. Co., 9 Rich. 465. The value of the property in any supposable case of like kind, is the extreme measure of damages. There are considerations which distinguish this case from one in which a total loss of the property in question is clearly traced to the wrongful act complained of. This was at most a transportation scarcely out of the immediate neighborhood, from one depot to the next on the road, and each within the heart of the same jurisdiction. Apart from considerations bearing on the question of negligence, it is difficult to perceive how loss to the amount of the entire value could be regarded as resulting from this act — and with this assumption even, it is manifest there is no warrant in the evidence for the amount of the verdict. The slave was mentally an imbecile, physically a cripple, and morally a runaway, as to whom witnesses well hesitated to affix scarcely any market value.

The witnesses who spoke at all, seemed to have some peculiar notion as to wbat might be her value to ibis plaintiff, although of comparatively little value to all others.

The verdict appears to us wild and capricious, and the motion for a new trial is granted.

O’Neall, Wardlaw, Glover and Motro, JJ., concurred.

Motion granted.  