
    B. L. M’Lauchlin v. John Lomas et al.
    
    The action was to recover the value of a negro who was hired by the plaintiff to the defendants as a house carpenter, and who died of wounds received in the use of a steam circular saw, while in their service. The verdict was for the defendants, and on appeal therefrom, the Court refused to grant a new trial, because the jury are alone competent to decide what is a proper implement of the carpenter’s trade — because there was evidence enough to support the verdict in finding that tire saw was not dangerous; or .not so dangerous as to malte the defendants liable for an injury which might occur to a hired carpenter in the use of it; and because, even if it were a dangerous implement, there was evidence by which the conclusion might be supported that the plaintiff knew of its use by the defendants’s workmen, and therefore consented to the use of it by his negro.
    If the hiring be for a particular service, and the negro be employed in any other way, or for any other purpose, not within the contemplation of the parties, the hirer would be liable for any injury sustained whilst thus employed.
    If the hiring be general and not for a particular use, then the hirer may employ the negro in any way he chooses, consistently with his obligation not to employ him in any dangerous work, such as a prudent man would not employ his own negro in.
    
      Before EvaNS, J. at Richland — Fall Term, 1847.
    This was an action on the case, to recover the value of a negro man named John Howell, who was hired by the plaintiff to the defendants, and died of wounds received whilst in their service. As the case depends on’ the evidence, it is stated in full.
    
      R. Kelso. —In May, 1846, the defendants had on hire, four negroes, (all carpenters,) belonging to the plaintiff. Jno. Howell was one of them. They were put at all kinds of carpenter’s work. The defendants were house carpenters and joiners. John brought with him house carpenter’s tools, and tools for finishing off work. There were in the shop, circular saws worked by steam. There were a great many worlc-men in the shop, some belonging to defendants, and some (apprentices. Every carpenter got out his own stuff. John had been in the habit of getting out his own stuff, as well as the others, at the circular saws. There is no more danger in the saw than in the use of other tools, except that the power is steam. John was sawing laths when he was hurt. Three of his fingers were cut off, and another cut by the saws.— Pie was sent to Dr. Toland’s shop, and from thence went home. Saw him at the mill 6 or 8 days after, with his hand in a sling. John was not a plasterer.
    
      Joseph E. Frey. — Is the foreman in the defendants’s shop. Defendants had four of plaintiff’s negroes. They were hired for house carpenters. Witness put John to sawing laths at the circular saw, when he was hurt. The plaintiff’s negroes were hired for house carpenter’s work. All were put to the saw. The laths were for a house which defendants were building. The work is not dangerous. Defendants had all the laths they used, sawed in this way. There were three circular saws in the shop. The saws used constantly, and no accident has ever occurred before. There were apprentices in the shop. They, as well as the other hands, worked at the saws. All were indiscriminately put to this work.— John had been working at his trade for some years. He was the oldest hand in the shop. The saws are dangerous if one runs his hand into them, but not otherwise. There is no other steam saw mill in Columbia, that he knows of. The plaintiff frequently passed along the street by the shop.
    , James Boatwright. — Owns a circular saw propelled by steam. It is used for any purpose for which it is wanted to rip up stuff, used in his employment as a gin maker. It is hazardous if one does not keep his hands away. It requires a cautious hand. One or two of his hands were bit a little by it. A house carpenter may get along better with his business by the aid of the saw, but it requires cape. Puts any of his hands about the shop to work at it. He hired some of his hands to the defendant, and would think the hirer might put a hired hand to the saw within the contract.
    
      Col. A. Summer. — Owns a circular saw to saw shingles, and cuts have happened at it. He gives 6 dollars a month more to a white man to attend to it than to a common sawyer. He would not feel at liberty to put a hired carpenter to work at it. He hired Sill’s carpenter, and gave direction that he should not be employed at the saws.
    
      Mr. Wade. — Knew John; he was a tolerable house carpenter and brick layer. The circular saw is no part of the tools of a house carpenter. It requires skill to learn the management of it. Would not hire a carpenter to be put at the saws, unless he was acquainted with it. It is the business-of the carpenter to get out the stuff for his work. After one has worked 6 months at the saw, would not think it dangerous. Would take 20 dollars per month for the hire v of one of his carpenters from Beck, rather than $30 from de-v fendants, on account of the danger of the saw.
    
      J N. Miller.- — Has been 30 years a carpenter. He would think the use of the saw hazardous to one unacquainted with them — would not expect a carpenter, hired of him, to be put to the saws. Would not think the defendants would have a right to put a negro, hired as a carpenter, to work at the saws. .Would rather let Wade have his negro carpenters at 20 dollars per month, than the defendants at 30 dollars, if worked at the saws.
    
      John Gray. — Has worked at the circular saw. Don’t consider it a part of carpenter’s business. Don’t know that he would make any difference in price, in hiring a carpenter to work at the saw or not, or that there would "be more danger than in other kinds of work, or that it would require more judgment. Has never heard of more accidents with the circular saws than with other tools. Used Boatwright’s circular saws last year. Beck used to have one. Was under no impression it was dangerous. Any of the hands were put to it, when he used Boatwright’s in building a house for Mr. Boatwright, Jr. All the hands he put at it were Boatwright’s.
    
      Mr. Schofield. — Is a bricklayer, but carries on the carpenter’s business. The circular saw is not a part of the carpenter’s tools. Would think it dangerous, and would object to his carpenters being put at it. Requires skill and attention. Defendants are undertakers in building houses.
    It was proved by Dr. Toland, that the negro died of lockjaw arising from his wounds.
    It was admitted the price of hire agreed to be paid was nineteen dollars, which was proved to be about the usual price paid for negro carpenters.
    It was also proved that John was a very valuable negro, and worth 1500 dollars.
    In his charge to the jury, the Circuit Judge stated the law as applicable to the case thus.
    1. If the hiring be for. a particular service, and the negro be employed in any other way or for any other purpose, not within the contemplation of the parties, the hirer would be liable for any injury sustained whilst thus employed.
    2d. If the hiring was general and not for a particular use, then the hirer might employ the negro in any way he chose, consistently with his obligation not to employ him in any dangerous work, such as a prudent man would not employ his own negro in.
    He summed up the evidence on these points, and submitted to the jury to decide. They found for the defendants.
    
      The plaintiff moved the Court of Appeals for a new trial, upon the following ground :
    Because the evidence having been clear, positive and un-contradicted,
    1. That the defendants represented and called themselves house carpenters.
    2. That the negro John was a house carpenter.
    3. That the defendants hired John with his carpenter’s tools as a house carpenter.
    4. That the price of a house carpenter in Columbia, at that time, was about twenty dollars a month.
    5. That defendants hired John at nineteen dollars a month.
    6. That a workman at the circular saw, propelled by steam, would have hired for at least twenty-six dollars a month.
    7. That no other carpenters in Columbia used the circular saw.
    8. That defendants began to use the circular saw about one year before they hired John, and about sixteen months before he was woun'ded.
    9. That plaintiff had no knowledge whatever, until John was wounded, that defendants were using the circular saw.
    10. That John was wounded in working at the circular saw.
    11. That John died of that wound.
    12. That John was worth fifteen hundred dollars. And the great and overwhelming weight of evidence having been
    13. That the working with a circular saw, was very dangerous to those not accustomed to it, or trained at it.
    14. That such work required great experience.
    15. That the working with a circular saw formed no part of a house carpenter’s business.
    16. That putting a house carpenter, who was hired as a house carpenter, to work with the circular saw, was a violation of the contract, and a misapplication of his labor, and of the hiring. The verdict of the jury finding for the defendants, was without any evidence in many of the foregoing particulars, and 'contrary to the positive and uncontradicted evidence, in other of the foregoing 'particulars, and against the decided weight of evidence in the remaining particulars, and altogether contrary to the law applicable thereto, and was bottomed altogether upon the vague and unfounded conjecture, that plaintiff must have known that defendants were using the circular saw, when he hired John to them, although there was not a particle of evidence to that effect, but the evidence offered on that point by the defendants, sheweth the contrary.
    
      Or egg & Myers, for the motion.
    
      W. F. DeScwssure & Tradewell, contra.
   Frost, J.

delivered the opinion of the Court.

The jury were correctly instructed in the law applicable to the case ; and the appeal is from the verdict, on the evidence. The questions of fact, on which the verdict depends, are whether John was hired to the defendants as a house carpenter ; did the accident, which caused his death, happen in the course of his employment as a house carpenter? and pertinent to this, is a circular saw, propelled by steam, a proper implement of a carpenter’s trade, or of so dangerous a kind that the defendant should be made liable for any injury it might do ? and if both these last inquiries be decided against the defendant, did the plaintiff know of the use of the circular saw by the defendant, in his workshop, so that the knowledge and consent of the defendant to the use of it by John, may be presumed ?

It is to be inferred from the evidence, that John was hired as a house carpenter. It is proved that the defendants were house carpenters and joiners. They had, in their workshop, circular saws driven by steam. John was put to all kinds of carpenter’s work. Every hand got out his own stuff; and John, as well as the others, got out his stuff at the circular saw. He was sawing laths for a house defendants were building, when he received the injury. John thus is proved to have been employed as a house carpenter. The next question, and that most strenuously argued against the verdict, is whether a circular saw is a fit implement of a carpenter's trade. There is no evidence that it differs from a common circular saw, and no inquiry having been made concerning it, justifies the inference that its fixture and use were well known to the jury. What is a proper implement of a carpenter’s trade, is certainly not a question of law, and of course the jury were alone competent to decide. In a large and the most thriving section of our country, circular saws are in almost universal use, by mechanics of every kind; and when the superstitious dread of steam shall have yielded to experience of its great utility and familiarity with its use, no master workman, in our own State, will carry on a trade without its valuable aid in propelling circular saws and other implements of his craft. It cannot be questioned that a saw is the proper tool of a carpenter, indispensable in every workshop. The objection to a circular saw, driven by steam, must consist in the danger attending its use. Four mechanics, who were familiar with its use, testified that it. was not attended with danger. Three, who did not use it, indulged apprehensions. Kelso and Frey, who work at defendants’s shop, state that all the hands, including apprentices, work at the saw, and the accident to John is .the only one which has ever happened. Boatwright puts any of his hands at it, and no accident, except of a trivial character, has occurred.— These facts outweigh the opinions of the witnesses who háve t not used it. All say that it requires care. That is required in the use of all edge tools. This is evidence enough to support the verdict, in finding that the same is not dangerous } or not so dangerous as to make the defendants liable for an injury which may occur to a hired carpenter in the use of it. But even if it were a dangerous implement, there is evidence by which the conclusion may be supported, that the plaintiff knew of its use by the defendants’s workmen, and thereby consented to the use of it by John. The case has been argued for the appellant, as if John was put to work the saw. If he had been set apart to that employment, that would have been a breach of the implied contract of hire. But the proof is uncontradicted that he was employed in all kinds of carpenter’s work, and used the saw only when a saw was necessary in the performance of his work.

In the opinion of a majority of the Court, the verdict is well supported by the evidence, and the motion is refused.

Evans, J. and Wirhers, J. concurred.

Richardson, J.

dissenting.

The question is whether a hired house carpenter, when employed at the circular saw of a steam mill is, thereby, placed within or without the employment, trade or usage of such carpenters. If within, the verdict is right; if without, it is to be set aside, If John Howell had been put in a common saw mill; which is not a perilous vocation ; hone could question that such use of him would have been at the risk of his hirer; not on account of the risk, but the change of employment in which the loss happened, If John had been employed generally, in the defendants’s steam mill, the hirer would, at his own risk, have so employed John: because such new vocation would have been out of the employment, trade or usage of a house carpenter. No one can doubt that such liability would have been the law of that case.— Again, none can question that, by putting John at the circular saw, he was destroyed. But if so employed, it Was in the mill; and we can make no distinction between the full and partial employment. This constitutes the whole case.

Por, I presume, it cannot be supposed that by simply passing along the street, M’Lanchlin assented to all that his carpenters were or might be employed at, within the shop and steam mill. This would be a wild assumption; and would justify the defendants, if his boiler were to burst and blow up M’Lauchlin’s three other carpenters ; when employed in some harmless part of the machinery. Were such a catastrophe to happen, the question would be as it is now — at whose risk, or for whose profit, was the steam employed ?— And by whom were the carpenters brought to this additional vocation of attending to any of the steam operations 1 The error lies in supposing that, unless this new vocation dangerous, the hirer is justifiable. The entire evidence seemed to make up this issue — was the use of the circular saw dangerous or not 1 Whereas the law is as follows : As to the use of the thing hired — there is on the part of the hirer, an implied obligation; not only to use the thing with due care and moderation, but not to apply it to any other use than that for which it is hired. Thus, if a horse is hired as a saddle horse, the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden. If a carriage and horses are hired for a journey to Boston, the hirer has no right to go with them on a journey to New York. So, they are hired for a week, he has no right to use them for a month. And, if the thing is used for different purposes from that which was intended by the parties, or in a different mer, 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. In short, such misuser is deemed a conversion of the property, for which hirer is deemed responsible.”

onBail ments,0^^ Kent, 456; 01lPa’^ W-5 Mass.’®.. 104; i00”;?" ^1’ 47.'^ Mill, 43i.’

Such is the undisputed law of bailments by hiring. Now, is it not plain, in the language of the appeal, that the jury have given a verdict contrary to such law ? They clearly misunderstood what Hobart calls “ the point and sense of law.” To use his quaint figure, they have left the kernel to take up with the shell.

The strict legal question is — was not the employment of a carpenter to manage a saw, propelled by steam power, a new faculty and vocation to a mechanic who is taught only to propel his own saw 7 But instead of deciding this question, the verdict amounts to this — that there is no great danger in this particular part of the very complex steam saw mill. And it is conceded that John was employed in this very part of the mill; but this was a change of John’s vocation, and caused his death. This is the point and sense of the law.— Now then, I ask, unless the hirer pay for the loss, what becomes of his liability, so plainly laid down by the law, for any change in the employment ? It is not enough to answer, it was a case for the jury. This Court is the guardian of the law; and it is not to be so frittered away. Here, permit me to observe, that proper judicial respect for verdicts, consists : first, in allowing to juries all competent evidence without pre-judging its weight — because all the evidence is for the jury; and secondly, in supporting such verdicts, on facts, as do not mistake or infract the law. But when they do, it is a dirty to order a new trial without prejudice, in order to preserve the law, together with the true useful agency and great value of such trials. We would have the kernel, not merely the shell of the law and of jury trial too. In a word, tjje just¿ce 0f a jury must be like all judicial justice, the dictate of the laws of the land — and not merely of some sup-p0se(j morai system, or fitness adopted for the occasion.— Such liberties tend greatly to degrade the law, pervert its justice, and weaken public confidence in jury trials. This case ought therefore to be reconsidered, as one in which the law, as it is, was clearly misconceived by the jury. We have several appeals to dismiss as mere verdicts upon evidence, which will illustrate the distinction between such verdicts, and verdicts that depart from settled law.

O’Neall, J. concurred.  