#### ELISHA HERRING vs. THE WILMINGTON & RALEIGH RAIL ROAD COMPANY.

The position is not tenable, that whenever damage is done, the law implies negligence.

Rat Where the plaintiff shews damage, resulting from the act of the defendant, which act, with the exertion of proper care, does not ordinarily produce damage, lie makes out aprima facie case of negligence, which cannot be repelled, but by proof of care, or some extraordinary accident, which makes the care useless.

What amounts to negligence is a question of law.

In an action on the case against a Rail Road Company for the negligence of their agent In running over and killing a slave, where it appeared that the slave was asleep on the tract, that the ears were going with their usual speed and at the usual hour, and the engineer, when within a short distance of the slave, attempted to stop the engine by letting off the steam and reversing the wheels, Held, that was not a case of negligence to subject the company to damages.

The case of Ellis v. Ports. §• Roan. R. R. Co., 2 Ire. 138, cited and approved.

Appeal from Sampson Superior Court of Law at a Special Term in December 1849, his Honor Judge Battle presiding.

This was an action of the case, brought by the plaintiff to recover damages of the defendants for negligent management of their cars, whereby one of the plaintiff’s slaves was killed and another badly wounded. On the trial it was proved, fhat, on a certain Sunday in the month of August 1845, about two o’clock in the afternoon, a train of cars, belonging to the defendants, was passing along their road at the usual rate of 15 or 20 miles an hour, when the wheels of the cars passed over one of the plaintiff’s slaves and killed him instantly, and badly injured the hand of another.

*403It was admitted, that the slaves were asleep at the time, but it was disputed, upon the evidence, whether they were lying on the bed of the road or just outside of it, or whether the one who was killed was not sitting' asleep on one of the rails, no witness having seen them until after the injury, when the body of the deceased was’’ found on the bed of the road with his thigh and arm both" crushed. The day was clear, and the part of the road, where the slaves were, was straight for more than a mile, but the slaves were under the shadow of a bridge, which connected the two sides of a deep cnt, sixty feet wide at' top at that place. The witnesses differed as to the distance, at which the slaves might have been seen by the engineer, who had the management of the cars, had he been looking out for them : some stating it to be half a mile, and others at two hundred yards. It was proved, that the train of cars was the regular mail train, and that' it was passing at the usual hour, and that the plaintiff owned the plantation at the bridge on both sides of the road. The defendants, for the purpose of showing that the injury was not occasioned by any fault of their agent, offered to introduce, as a witness, the captain of the train, but it was objected, that he was interested, because of his being responsible to the defendants, if a recovery was had against them. It appearing, however, upon his examination to that point, that he had nothing to do with the running of the cars, that being under the exclusive direction of the engineer, who was appointed by, and responsible to,, the company, and not to the captain, he was admitted. From the testimony of him and other witnesses it appeared, that when the cars were very near the slaves, just before it passed over the one who was killed, the engineer attempted to stop the cars by letting-off the steam and reversing the wheels, but the impetus, which they had received, carried them on about seventy yards before they stopped. It was proved to bo the duty *404of the engineer, whose station is on the right side of the engine, to keep a look out for obstructions on the road-It was further proved, that, when the train was moving at the rate of 15 or 20 miles an hour, it could not be stopped suddenly in a shorter space than seventy-five or a hundred yards. The engineer was proved to be ordinarily skilful. The plaintiff contended, that it was only necessary to prove, that the injury was done to his slave by the defendants or their agent, and the law would imply that it was done negligently, until the contrary was shown. The plaintiff contended further, that he was in no default; for, that, admitting it to have been wrong in his slaves to have gone to sleep on the defendants’ road, at the time when their train of cars usually passed, he was not to be affected by their wrongful act. But that, if the fault of his slaves could be imputed to him, he was still entitled to recover, if the defendants were, as he contended they were, guilty of neglect on account of their agent, the engineer, not keeping a proper lookout, and by such default not having seen his slaves in time to prevent running over them. In other words, that notvvith • standing his, the plaintiff’s default, the defendants’ misconduct was the proximate cause of the injury, and they were therefore responsible for it. The defendants contended, that, as the plaintiff was guilty of the first negligence by his slaves going to sleep on their road at such an -unseasonable hour, he brought the injury on himself and could not recover, even supposing their agent was, though they contended lie was not, guilty of some negligence.

The Court charged (he jury, that to entitle the plaintiff to recover he must show, that he had sustained an injury by the negligent conduct of the defendants’ agent: that the plaintiff’s slaves were guilty of neglect in going to sleep upon the defendants’ road at the time and under the circumstance stated by the witnesses, and that the *405fault of his slaves was imputable to the plaintiff: this circumstance, though it would not in all cases excuse neglect on the part of the defendants, yet would diminish the amount of prudence and care required of them : that, if the plaintiff’s slaves had been crossing the rail road along an ordinary public high way, where they had a right to be, the defendants would be responsible for any neglect of their agent, the engineer, in keeping a proper look out, if such neglect were the cause of injury to the slaves; but that, under the circumstances of this case, such precautions in keeping a look out could not be expected or required from the engineer, and the defendants were not responsible, unless their engineer, after seeing the slaves, failed to use all the means in his power to prevent injuring them, and that they were responsible, if he did fail to use such means after seeing the slaves.

The jury returned a verdict for the defendants. And the plaintiff, after an ineffectual motion for a new trial, appealed to the Supreme Court.

Strange and D. Reid, for the plaintiff, relied upon the following authorities.

liuggett v. Montgomery, 5 Bos. & Pull. 446. Williams v. Holland, 10 Bing. 112, (25 E. C. L. R. 50 )j 1 Petersdorf’s Abridgement 112. JValman v. Robinson, 1 Bing. 213. Dean v. Clayton, 7 Taun. 489, (2 E. C. L. R. 183.) Peg-gilt v. Eastern Co. R. R. Co., 54 E. C. L. R, 229. Lynch v. Nurdin, 1 Adol. & Ellis N. S. 20, (41 E. C. L. R. 422.) Davies v. Mann, 10 Mus & Welsby 54G.

W. Winslow, for the defendants:

There is nothing in the charge, of which the plaintiff can justly complain. The plaintiff’s slaves were unlaw fully upon the road of the defendants, and, having substantially contributed to the injury, were the authors of their own wrong.

*406 Yanderplank v. Miller, 1 Moody & Malk. 169. (22 E. C. L 280.)

Pluckwell v. Wilson, 5 Car. & Payne 375. (24 E. C. L. 368.)

Lunsford v. Large. Ibid 375.

Wolfe v. Beard, 8 Car. & Payne 373. Hawkins v. Cooper, ib, 473. (34 E. C. L. 435, 485.)

Sills y. Brown, 9 Car. & Payne 601.

Raisin v. Mitchell, ib. 613. (38 E. C. L. 245, 252.)

Williams v. Holland, 6 Car. & Payne 23. (25 E. C. L. 260)

Greenleaf, 473, and cases there cited.

Ilarifield v. Roper, 21 Wendell 615.

Raihburn v. Payne, 19 “ 399.

Hotty. Wilkes, 3 B. & Alderson 304, (5 E. C. L.)

No negligence has been shewn on the part of the defendants, and, to entitle the plaintiff to recover, he must shew carelessness by the defendants, or prove facts from which it can be inferred. Per Tindall C. L in Aldridge v. Great Western R. R. Co., 42 E. C. L. 27 6.

Pearson, J.

The gravamen of the action is negligence on the part of the defendants through their agent, and the question is, was there evidence of negligence.

It was proven, that the cars ran over two negroes of the plaintiff, killing one and injuring the other ¡and the plaintiff insists, that, from this fact, the law implies negligence. The position is not tenable, that whenever damage is done, the law implies negligence. The bare statement of the proposition shows its fallacy. The cases of Ellis v. Ports. Roan R. R. Co. 2 Ire. 138, and Peggit v. East. Co, Rail Road, 54 E. C. L. R. 229, were relied on as supporting this position. In both cases fire was communicated to the property of the plaintiffs — in the one case, a barn — in the other, a fence was set on fire by sparks from the cars. It was proven in both cases, that *407the cars had been running for a long time without doing any damage, and, things remaining in the same condition, the fact, that fire was communicated on a particular occasion, was properly held to be prima facie evidence, that it was the result of negligence. Judge Gaston, in the case of Ellis, lays down the rule in these words: “where the plaintiff shows damage resulting from the act of the defendants, which act with the exertion of proper care does not ordinarily produce damage, he makes out a prima facie case of negligence, which cannot be repelled, but by proof of care, or some extraordinary-accident, which makes care useless.” In'other words, as the cars had been running under the same circumstances time after time without setting fire to the fence, if on a particular occasion the fence is set on fire, it must be ascribed to negligence, unless it can be accounted for, as by showing there was a sudden gust of wind, or some other unusual cause. In this case, the cars had been running for years without injuring a negro, because.no negro had fallen asleep upon the track. That was itself an unusual circumstance, and repels any inference of negligence, from the mere fact, that damage was done, and therein this case differs from the cases of the fence and the house, which had remained stationary. The question of negligence then is open for inquiry.

What amounts to negligence.is a question of law. Admitting the facts to be as contended for by the plaintiff, there was no evidence of negligence. The cars were running at the usual hour and at the usual speed, not through a village, or over a crossing place, or turning a point, but upon a straight line, where they could be seen for more than a mile. The negroes might have been seen at the distance of half a mile. Whether the engineer saw them or not until he was too near to stop, does not appear. There is no evidence that he was not in his place and on the look out. It cannot be inferred from th© *408fact, that he made no effort to stop until he got within twenty five or thirty yards of the negroes ; for that is entirely consistent with the supposition, that he had seen them for half a mile ; because, seeing them to he men, he naturally supposed they would get out of the way before the cars reached, 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 fore-see, and his being then too near to stop, so as to save them, was their misfortune, not his fault.

If there had been a log of wood on the track, running over it would amount to negligence ; for, if the engineer did not see it, there was negligence in not keeping a look out, and if he did see it, there was negligence in not stopping in time, as wood has neither the instinct of self preservation nor the power of locomotion. If there had been a cow on the track, the ease would not be so clear, for the animal has both the instinct of self preservation and the power of locomotion ; but, on the other hand, it is known, that such animals lose their natural apprehension of danger by frequently seeing and hearing the cars. But as the negroes were reasonable beings, endowed with intelligence, as well as the instinct of self preservation and the power of locomotion, it was a natural and reasonable supposition, that they would get out of the wTay, and the engineer was not guilty of negligence, because he did not act upon the presumption that they had lost their faculties by being drunk or asleep. If a deaf mute, while walking on the track, be unfortunately run over, it would certainly not be negligence, unless it was proven, that the engineer knew the man and was aware of his infirmity. If the cars are to be stopped, whenever a man is seen walking on the road, lest perchance he may be a deaf mute,- and whenever negroes are seen lying on the track» lest'they may be drunk or asleep, a knowledge of this impunity would be an inducement to obstruct the high*409way and render it impossible for the company to discharge their duty to the public, as common carriers.

We concur with his Honor as to the competency of the captain as a witness for the defendants. He was in no wise responsible But we do not concur in the opinion, “that the fault of his slaves in going to sleep on the road at the time and under the circumstances stated by the witnesses was imputable to the plaintiff.” No fault is imputable to the owner for not preventing his negroes from going about on Sunday and lying down where they please, nor is the amount of care required of the defendants thereby “diminished.” For this reason, we should be compelled to grant a venire de novo, if this instruction could have influenced the decision of the case. But, as the plaintiff made out no evidence of negligence, this^ error was immaterial.

For the same reason it is unnecessary to notice the cases cited in the argument, as to the damage done, when there was negligence on both sides. We concur in the opinion, that, when this is the case, neither party can recover, unless one be guilty of wanton injury or gross neglect, which is much the same thing; for, if both are in equal fault, if one can recover so can the other, and thus there would be mutual faults and mutual recoveries, which would contradict the saying, “that law is the perfection of reason.”

Per Curiam.

Judgment affirmed,