
    John Wise vs. Christian Freshly & Thomas L. Veal.
    A baillee for'hire is liable for any injury the hired propel ty sustains from his negligence, aud the jury cannot at their arbitrary discretion assess the property at a value much less tha” its true value.
    This was an action on the case tried before his honour Judge Waties, at Lexington, Spring terra, 1826.
    evidence was substantially as follows: - The defendant bad by contract undertaken to open Saluda river, and remove the obstructions to the passage of boats. Being in want of hands they applied to the plaintiff, who hired at the rate of seventy five cents per day, two negroes, Edmond and Norridge, neither of whom could swim well, upon the express .stipulation that they should not be employed in deep or swimming water. The defendant Freshley on the 28th October 1824, being about to finish the last part of the work which he then intended to do, proposed to put up,a sign-post on a rock in a ripple, at the head of Lee’s shoals above where Wise’s hands had been before employed. He and all hands bad .been drinking too much. It appeared by going in below the rippie, that the water was eddy and the passage safe» Freshley suggested that the lower route was the safest, but at the instance of some of the hands he went above the ripple. When the canoe reached the sluice, on some danger beingap-prehended, Freshly jumped out of the canoe and ordered all hands to jump out, hold the canoe, and save his tools, of which ’there was about 200 lbs. weight in the canoe. The negro Edmond jumped out and was immediately drowned. It appeared also that Freshly was fully apprised of the, danger of the place and subsequently stated to several of the witnesses, that he knew it was a very dangerous place, but that none of the rest of the hands knew the danger; that by his knowledge of the place he knew exactly where to jump out; and that if he had not he must have been in among the rest. That the rest of the hands who made their escape had to swim about three hundred yards; that Freshly would not permit a negro named Lamb, who belonged to himself and Veale to go in the canoe; and that afterwards said if he had permiffed Lamb to, go in he would have been drowned also. The sluice where the negro was drowned was proved tft be a very deep and dangerous place — that to go in above the ripple was a very dangerous way, and that to go in below was perfectly, safe and free from danger. That there was no necessity of Edmond’s going in, Freshly having himself stated, that the other hands, all of whom were white men, were amply sufficient to put up the sign-post.
    His honour, charged the jury, that the law was perfectly clear, and that the plaintiff was entitled to recover if they believed the contract to be proved, or upon the general liability of the defendant as bailee, if they believed the defendants had been guilty of any neglect; but left it to the jury to decide upon the testimony. The negro was proved to be worth one thousand dollars. The jury found for the plaintiff one cent. The plaintiff appealed and moved the court of appeals for a new trial, on the grounds:
    1. That by the terms of the contract, which was most' abundantly proved, the defendants were liable for the valué of the negro;
    2. That as bailee for hire they did not take that care of plaintiff’s negro, which a prudent man would of his own and that they were therefore chargeable; and
    3. That the verdict was contrary to the law and the evidence of the case.
    
      GWvetí, for the motion.
    
      éaldwell, contra»
   Colcock, J.

In this case a new trial must be granted, for the jury have by their verdict established the right of the plaintiff to recover, and if he has a right to recover he ought to have' the value of the property lost.

Where evidence is of a doubtful character, or where “ there is a conflict among the witnesses of the plaintiff and ’ defendant, the juries are the proper persons to decide. But. they have no such arbitrary and capricious power as to give to a citizen one cent for property indisputably proved to be worth five hundred or one thousand dollars.  