#### THOMAS BILES vs. MOSES L. HOLMES & AL.

Ordinary care, reasonable time and probable cause, tbe facts being cstab- . Habed or proved, are questions of law, to be decided by tbe Court.

Tbe declarations of a slave, as to bis bealtb and (be condition of bis body, are admissible in evidence in an action brought by his master to recover damages for an injury done to him.

Tbe Gases of Herring v. Wil. Rat R. R. Company, 10 Ire. 402, and Swatm v. Stafford, 3 Ire. 293, cited and approved.

This is an action on the case, in which the plaintiff claims damages for an injury to his slave named Green, which has greatly impaired the usefulness, and lessened the value of the said slave. The plaintiff' declares in many counts; in one set, he alleges that the injury arose from the negligence of the defendant; in another set, he alleges, that the injury arose from the negligence of the agent of the defendant; in a third set, he alleges, that the injury arose from the want of ordinary care on the part of the defendant; and in a fourth set, he alleges, that the *17injury arose form the want of ordinary care of the agent of the defendants ; and alleging in each count, that the defendants were the bailees of the plaintiff, the defendants having hired from the plaintiff the said slave, to-wit, at the gold mines of the defendants and were bound to take that care of Green, which an ordinary man would take of his own property. The suit was instituted by Thomas Biles, as plaintiff against Moses L. Holmes, John Me-Coffin, and others, as defendants. The plaintiff introduced John Cauble as a witness, who proved that the defendants had hired from the plaintiff his slave Green, to work at the mine of the defendants at Gold Hill; that he, Green» had been put to work at the bottom of a shaft about one hundred and eighty feet deep, from which the defendants were taking gold ore; that buckets about three feet deep, each capable of holding sixty gallons, were alternately let down and drawn up; as the one was ascending, the other was descending, being used to bring up either ore or water to the surface of the earth ; that the witness was in the service of the defendants and was employed as their “lander ’ at the mouth of the shaft, it being his duty to receive and unload the ascending buckets and to fix and let down the descending buckets; and to put in the descending buckets whatever was to be sent down the shaft; that these buckets were used to bring up water and ore; that in the bottom of the buckets was an aperture four inches square, over which was a valve six or eight inches square, and fastened at one end to the bottom of the bucket, which valve being raised at the other end when the bucket was brought up and landed, the water escaped ; that when these buckets were used to bring up ore, or to carry down implements to work with, the aperture was closed with a wooden plug nailed in from the outside, and as a further security against anything falling through the bottom of the bucket, the valve was nailed down over the aperture on the inside ; thata without the *18valve on tibe inside, or iron hoops on the bottom, securing the plug in the aperture, the buckets are not safe, and are not in a condition to be used with safety to those who are working at the lower extremity of the shaft; that, about nine o’clock in the morning, on the 28th January 1848, as one of the buckets commenced descending, the witness, who was the ''lander” of the defendants, dropped into it four iron drills, each weighing five pounds, which instantly passed through the aperture in the bucket at its bottom and one of them struck Green on the head, and fractured his skull, which made the operation of trepan-ning necessary, and a large piece of the skull bone was cut out. Green was working at that time at the bottom of the shaft, directly below the bucket. The witness knew that Green and a white man were then working there together: that drills are implements used by miners in getting the ore ; that, at the time the drills were put in the bucket, there was no valve in the bucket, and there was no iron hoop or strap at the bottom of the bucket to ■secure the plug ; that the witness had been engaged from twelve o’clock at midnight until nine o’clock the next •morning, when Green was injured, the witness being •employed during that period as the lander of the defendants, in landing and unloading the buckets, at the mouth •of the shaft 5 and during the said period the witness had ■not looked into either of the said buckets, or put his hand in either of them, to ascertain if the aperture at the bottom was properly secured.

Another witness was introduced by the plaintiff and ■was asked, if Green did not complain much of head-ache, when exposed to the sun, and if Green did not state his inability to work in the sun, or to work in any laborious employment. These declarations of the said slave were opposed as evidence in the cause by the counsel for the defendants, and they were excluded by the Court.

*19Ill's Honor charged the jury, that this was a bailment beneficial to both parties, and that, if the defendants had hired the slave Green from the plaintiff, they, the defen» dants, were bound to take that care of Green, which a prudent man would take of his own property: and if the injury complained of in this ease arose from an omis» sion, on the pari of the defendants, or their agent, of that care which a prudent man would take of his own property, which was a question for the jury, then the defendants were liable in this action. But if they believed, that the defendants, or their agent, had not omitted on this occasion that eare of Green, which a prudent man would take of his own property, then they should find for the defendants. The jury rendered a verdict in favor of the defendants, Rule for new trial. New trial refused and rule discharged. Judgment for the defendants, from which judgment the plaintiff prayed an appeal to the Supreme Court, which was granted.

No counsel for the plaintiff.

Mendenhall, for the defendants.

Pbaksoií, J.

What amounts to “ordinary eare" is a question for the Court. The Judge below erred in leav» ing it to the jury.

Whether the proof establishes particular facts is for-the jury ; but what is the legal effect of these facts, supposing” them to exist, is lor the Court Accordingly it is settled, that ordinary care, reasonable time, and probable cause, the facts being admitted or proved, are questions of law. Herring v. Wil. & Ral. R. R. Company, 10 Ire. 402, Swaim v. Stafford, 3 Ire. 293.

If these were not questions of law, no rule could ever be established, and the legal effect of certain facts, like their existence, would in all cases depend upon the Had-ing of ajury, with no mode of having its correctness judged of by a higher tribunal.

*20: Had the jury come to a correct conclusion, the error of the judge in submitting the question to them, instead of deciding it himself, would have been immaterial; but» .taking the evidence to be true, there was manifestly a want of ordinary care.' A large bucket, with a hole four inches square in the bottom, the fastenings of which were liable to be knocked off, is used nine hours without any examination ami as the bucket commenced descending, four pieces oí iron, weighing five pounds each, are dropped into it, without looking to see, as might have been detected by a mere glance, that the fastenings were off and the-hole open, and this too when the lives of two men were at stake. “Ordinary care” required, that the fastenings should have been examined and the pieces of iron should' have been put, not dropped, in the bucket cross-ways or in such a manner as to prevent them from falling out or dropping through.

* As the case will be tried again, it is proper to'notice the question of evidence, as to which his Honor also erred.

The object of the plaintiff was to show the condition of his slave, that he had not recovered from the effect of the blow and was permanently'injured. For this purpose it was competent to prove how he acted, how he looked,- and of what he complained. In fact this is almost the only kind of evidence by which the condition of body or mind can be ascertained ; it is natural evidence or the' evidence of facts, as distinguished from personal evidence' or the testimony of witnesses ; Best, on the principles of. evidence. :

The declarations of a patient to his physician are strong-evidence of the state of his health, and only differ from his declarations to a third person, because it .is less probable that he. will feign or state falsehoods to one, by whom he hopes to bo relieved; but this consideration only affects the degree of credit due to such declarations and docs not affect their admissibility. Whether expres< *21sions of pain are real or feigned, must be determined by the jury. 1 Greenleaf Eo. 126.

If it be material to ascertain the mental condition of an individual, his conversation at different times is admissi* ble. Upon the same ground, it being material to ascertain the bodily condition of the slave, his complaints of head ache, when exposed to the sun, and his declarations that he was unable to work in the sun, or to endure hard labor, are admissible. True, one may feign the language of a mad-man, or may utter false complaints of pain, but the law does not on this account exclude what may be the only mode of proof. It is left to the good sense of the jury, connecting the declarations with the acts and looks of the party and other circumstances, to say how far such evidence is to be relied on.

The statute, excluding the testimony of a slave or free person of color against a white man, has no application. The distinction between natural evidence and personal evidence or the testimony of witnesses, is clear and palpable. The actions, looks and barking of a dog are admissible as material evidence, upon a question as to his-madness. So the squealing and grunts or other expressions of pain, made by a hog, are admissible upon a question as to the extent of an injury inflicted on him. This can in no sense be called the testimony of the dog or the hog. The only advantage of this natural evidence, when furnished by brutes, over the same kind of evidence, when furnished by human beings, whether white orblack.is that the latter having intelligence, may possibly have a motive for dissimulation, whereas brutes have not; but the character of the evidence is the same and the jury must pass upon its credit. ;

1’jSR CURIAM. There must be a venire de novo.