
    John S. Richardson, Sr. vs. Wil. & Man. R. R. Company.
    Case against a railroad company for running over and killing with their train a slave of the plaintiff’s, asleep upon the road. Verdict for the defendants, which on appeal the court refused to disturb.
    Even if there was negligence on the part of the defendants, the slave, whose act is to be attributed to the owner, being as much to blame as the defendants, no recovery could be had.
    The proximate cause of the slave’s death being his own voluntary imprudence, the defendants are not liable.
    BEFORE WHITNER, J. AT SUMTER, FALL TERM, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    
      “ This action was brought by plaintiff to recover damages for a negro boy, the property of plaintiff, killed by the train running the road of the Company, in the day time, the latter part of March, 1853. The boy was active and intelligent; about twelve years of age ; who had been frequently used in going on errands, and especially accompanying the plaintiff in care of his horse and buggy to Sumterville, the Railroad, and elsewhere. On this occasion the plaintiff was absent on a visit to Charleston, and being expected that day, the boy Ned had been dispatched to that point on the road where plaintiff usually got on and off the trains. This was neither a depot, station nor turn out, and the train only stopped when passing for the accommodation of a few families in that neighborhood, and when occasion required. Such passengers were put off when on board or taken up on a signal at and near the place where the boy was killed, without reference to any precise point. The boy was lying along side of the rail, and asleep on his face, though outside of the track, on the ends of the cross ties, with his head to the west, and in the direction the train approached — the course of the road at that point being east and west. Road entirely straight for more than a mile west, and more than four hundred yards east, with a descending grade. The boy was lying on the south side, being the side on which passengers were usually landed, and the side opposite that at which he came to the road, having crossed and gone further west, fifty yards or more.
    “ A neighborhood road crosses two hundred yards east, and a cattle guard, with a board fence, twenty-four yards west, and on same side of road with body — an excavation above and an embankment below, and being a few feet elevation at the spot the boy was killed — a clear open plain otherwise.
    “ The train was running at the rate of twenty miles per hour, being the usual speed, and consisted of the engine and tender, a passenger car and two intermediate cars.
    “ The cow-catcher which extends over the rail and above it some two inches, passed without striking, but a bolt through the tender box, about the same distance from the rail, though a little more elevated, struck the head of the boy in the forehead, near the edge of the hair. The skull was fractured and scalp knocked back, blood and skin being found on the end of the bolt.
    “ The body was not seen by any one but the engineer, as his signal gave the first intitnation that anything had happened. The Engineer and Conductor were examined on part of the defendants, and the Fireman on the part of plaintiff.
    “ The plaintiff did not return, as had been expected by his family, nor was there any other passenger to land there that day, and the habit was to pass with usual speed under such circumstances. The train passed also about the usual hour. Thus far I think there was no contest about the facts of the case.
    “ The great point of contest in the evidence seemed to be the point at which the body might and ought to have been seen by a vigilant Engineer, and the proper course to be adopted under various exigencies consequent upon such discovery; and this too was the gravamen of the argument.
    “And in this connection, the board fence, its construction, necessity, and precise proximity to the road was inquired after to determine whether this furnished any matter of obstacle and excuse.
    “ The plaintiif caused a little negro'boy, on a subsequent occasion, to be placed at the spot, lying on his side, with head near the rail and body perpendicularly off, and several gentlemen walked from the body, observing at different points the effect produced by distance — 50, 75,100, 125, 150 yards, &c. They testified, that with his face towards them he could be recognized as a negro between 100 and 125 yards ; at a distance of 200 yards an object could be seen on foot, and on horseback 400 yards. Mr. Dinkins did not know but 600 yards.
    “ The fence they thought constituted no obstacle to the view, not approaching the track near enough even to one on foot, much less from an elevation. Mr. Dinkins, who spoke with most emphasis, said it was four feet from track, though others thought two or three feet. Dinkins said it was no more in the way than Sumterville or Charleston. The other gentlemen besides Dinkins were Rev. Mr. Graham and Col. Mellett, the latter testifying it would make a great difference in taking an observation, to be in motion one’s self at time. Mr. Singleton was once on a tender, not running very fast, when a negro had been placed at the spot, and he could recognize it as an object some 200'ór 300 yards, and as a human being some 125 yards. He had placed the board fence at cattle guard to protect his fields, as near as he could well approach the rail, to permit trains to pass. He did not think the fence interposed any obstacle to vision.
    “ The engineer, H. H. Cole, not now in the employment of company, testified that he saw a small object about size of fist, on the rail, (afterwards ascertained to have been a clod of dirt,) at distance of twenty-five or thirty steps — was observing it particularly at ten steps, saw and as he passed recognised hand of human being. Shut off steam instantly, being -all he could do; blew down the breaks and reversed his wheels. Stopped some two hundred yards or more, and 'backed up near. Conductor and passengers got out and examined, &c. This engineer and another examined, (a Mr. Gay,) thought the board fence would constitute an obstruction to some extent in discovering an object, situated as this body was, until very near. Each of them together, with Wilder the conductor, and Sherwood .the mail .agent, who had formerly been employed on road, all testified to the comparative and increased difficulties in making observations as between being at rest and in motion; the disadvantage much enhanced occasionally by smoke, strong breeze and speed — a comparison as between being'.on an elevation or on foot.
    “They testified as perhaps did others, that on such a grade at this speed such a train, by all the -appliances to be used, could not be taken up under two hundred and fifty or three, hundred yards. Jesse Windham, the fireman, not professing much experience, thought it might be stopped in one hundred or two hundred yards, and Mr. Dinkins said, that once subsequently, to test this matter, a son of plaintiff intending to take passage, was concealed, until-as the' train was passing the guard fence, suddenly jumped out and made signal, and they took up in about 175 or 200 yards, and backed up for him.
    “ The character .of Cole as a skilful, cautious, and careful engineer, whilst on this road, and for many years on the road in North Carolina, whence he came to this road, was very fully proven.
    “ On the cross examination of one, it was proved that he had once or twice drank very freely, but never on duty, and after-wards testimony of his sobriety when on duty, and especially of his having been entirely sober at the time, was multiplied.
    
      “ Some other evidence was offered, showing the extent of the road running then as far as Hill’s, perhaps, near the Pee Dee, connecting through by staging, carrying certain mails, though not the great mail, and as to the usual number of passengers, tonnage of engine, weight and length of other cars, &c., which 1 have not deemed of sufficient consequence to detail.
    “ The case was very fully presented by an elaborate argument of two counsel on each side to an intelligent jury.
    “ The jury were told that to entitle the plaintiff to recover damages for the negro, a negligent killing must be shown. That if there was negligence on the part of the company, or fault on the part of the engineer, or other agent or servant of the company, resulting in the death, the defendant must answer, otherwise the plaintiff’s action must fall to the ground. These questions were to be settled by the special circumstances, to be ascertained by the jury. That the defendants were not to be excused by the mere fact that the negro, though having volition and intelligence, had voluntarily placed himself in danger, by lying down, and going to sleep on or near the track, if by proper care and conduct in reference to the management of the train, his life could have been saved. Distinguishable from the brute if any peculiar hazard attended one part of the road more than another, arising from descending grade, length of train, weight of engine, fences and cattle-guards, or other necessary incidents to railroads, the voluntary imprudence of one endowed with ordinary intelligence and acquainted with, the nature and use of railroads, exposing himself to such increased danger, became an element in the question of negligence and fault. In this connection, I adopted the “ proposition” of Judge Butler, in the case of Felder vs. R. R. Company, 2 McM., on page 406, holding this company to show,' however, the special circumstances, and that no fault was imputable to the engineer having. direction of the locomotive. I thought, and so said,, that if the grass in that case could not avail to fix blame, a cattle-fence of ordinary structure and necessity could hardly create a liability here. Whether in fact, the fence in question constituted any obstacle, was much mooted. I have no idea that the decision of the case was affected by it. The jury were not confined to an inquiry whether there was “ negligence in the engineer only,” and if it so seemed to plaintiff, it was only that in my remarks to the jury, pursuing the general line of argument adopted by counsel, especial prominence was given to him and his acts, in the testimony and argument, and the legal consequences claimed to flow from his sins, whether of commission or omission.
    “ The jury returned a verdict for the defendants, as I thought they were fully warranted in doing, upon any just view of the facts in this case.”
    The plaintiff appealed, and now moved for a new trial, on the grounds:
    1. Because his Honor charged the jury that if the fence at the cattle-guard obstructed the view of the engineer, then the plaintiff’s case fell to the ground, as in that case no fault or negligence could be imputed to the engineer, and unless there was fault or negligence on his part, the plaintiff could not recover: Whereas, his Honor should have charged that there was or might be fault, carelessness or negligence on the part of the company, sufficient to make them liable to the plaintiff, in erecting, or permitting to be erected, a fence so near to the road, and on their own land-, as to obstruct the view of the engineer.
    2. Because the whole evidence made out a clear case of negligence, and his Honor charged to the contrary, and erred in this, that he confined himself and the jury to an enquiry into the question, whether there was negligence in the engineer only.
    3. Because his Honor charged that the erection, or permitting to be erected, by the company, of a fence so near the road as to- obstruct the view of the engineer, was no ground on which carelessness or negligence could be imputed to the company, although the obstruction was at a grade in the road, and the cars were there run at the usual speed of twenty miles an hour.
    
      Mayrant and Richardson, for motion.
    
      Saynsworth, Moses, contra.
   The opinion of the Court was delivered by

MuNRO, J.

Where a party seeks to recover damages for an injury to his person or his property, resulting from the negligence of another, to entitle him to recover, he must show that his own conduct has been free from blame; for if it be made to appear that he has- contributed- to his own misfortune, or that by the exercise of ordinary care he might have avoided the consequences of the defendant’s negligence, he is then considered as the authqr of his own wrong, and cannot recover — in other words, if the mischief complained of be the result of the combined negligence of both parties, they must remain in statu quo, neither party can recover against the other, for it is clear there must be wrong as well as damage, and theive can be no legal' injury, where the loss is the result 'of the common fault of both parties. 11 East, 60; 24 E. C. L. R. 369; 10 Mee. & Wels. 548.

If we subject the faets of this case to- the test of the foregoing rule, it is clear that the plaintiff has entirely failed to exhibit, such a case as entitles him to recover; for if it even be conceded the defendants were to blame in permitting, the fence to be erected at the cattle guard, and that it interrupted the view of the engineer along the road — the ground by the way, that was chiefly relied on in the argument — i't must at the same time- be conceded, that the conduct of the plaintiff’s slave, a being indued with reason and forethought, was, to say the least of it, not less culpable, in voluntarily lying down to sleep by the side of the track, over which'he must have known the train was in the daily habit of passing at stated periods, and that if it did pass while he remained in that posture the consequences to him could hardly fail to prove otherwise than fatal.

But again, might not the consequences of the assumed negligence of the defendants, in permitting the erection of the above mentioned structure, have been easily avoided, by the exercise, on the part of the' slave, of the most ordinary prudence ? when all he had to do, in order to avoid the coming in contact with the train, was simply to have obeyed the natural instinct of self preservation, by keeping at a proper distance from the road ; and if he felt disposed to go to sleep, to have selected a situation for that purpose but a few feet, or even a few inches removed from the place which he did select, and where he would have been entirely beyond the reach of danger.

But if we subject this case to the test of another rule, a rule not less important than the former in the adjudication of the class of torts to which this casé belongs, and for the redress of which the present form of action is the appropriate remedy, namely: “ that the damage must always be the natural and proximate consequence of the act complained of;” it will prove not less fatal than does the former, to the plaintiff’s right to recover.

In the application of this rule to the case in hand, it is only necessary to refer to the ruling of the Court in the case of Felder vs. The L. & Cin. R. R. Co., (1 M‘Mul. 403.) In that case the plaintiff’s slave went to sleep on the road, where the grass was so high as to obstruct the view 'of the engineer until the engine was too near to the body to stop it, so that it ran over the slave and killed him; and the Court held, “ that the proximate cause of the slave’s death was his own voluntary imprudence, in placing himself in a situation of danger;” and in reply to the argument that the defendants should be held liable for not keeping the grass cut down, that had obstructed the view of the engineer, the Court said — “ This was a remote source of danger, and could not be regarded as the proximate cause of the accident, for the engine might have run over the boy, notwithstanding the high grass, as from the situation of the body, it might not have been seen by the engineer until it was too late to stop the engine.”

The same will be found to have been laid down even more broadly than it was in Felder’s case, by the Appellate Tribunal of an adjoining state, in the case of Herring vs. The Wil. & Raleigh R. R. Co., (10 Iredell, 402.) In that case, two of the plaintiff’s slaves were asleep on the track, when the wheels of the engine passed over one of them and killed him, and badly injured the other, but the Court said — " It cannot be inferred from the fact, that he (the engineer) made no effort to stop the engine, until he got within twenty-five or thirty yards of the negroes, for that was entirely consistent with the supposition that he had seen them for half a mile ; because, seeing them to be^ men, he naturally supposed they would get out of the way before the cars reached them, and might well have continued under this impression until he got near enough to see that they were either drunk or asleep, which he was not bound to foresee ; and his being then too near to stop, so as to save them, was their misfortune, not his fault.”

Seeing then, that there has been no judicial error in the charge of the Circuit Judge, and that the question of negligence has been resolved by the jury in favor of the defendants, we can perceive no reason why the verdict should be disturbed.

The motion is therefore dismissed.

O’Neall, Wardlaw, Withers, Whither, and Glover, JJ., concurred.

Motion dismissed.  