#### JACOB BROCK vs. REUBEN KING.

Where a jailor received a runaway slave without a warrant of commitment, and witlxout chaining him, locked him up in a dungeon in the common jail of the county, appropriated for slaves and criminals, from which no person had ever escaped, though the jail generally was very insecure, and such runaway escaped by breaking the door and by making a hole in the wall of the prison; Meld, in an action at common law, that such jailor acted with due care, and was not liable for the escape.

The question of diligence and care in the relation of bailor and bailee, is one of Law, and ought not to be left to the jury. But if it is left to the jury, and it appears to this court that they decided correctly, it is not sufficient ground for a venire de novo. '

Action on tbo case for an escape of a runaway slave, tried before bis Honor, Judge Saunders) at Pall Term, 1855, of Robeson Superior Court.

Tbis case was before tbe court at tbe June Term, 1855, (2 Jones’ Rep. 802,) and a venire de novo bavingbeen awarded, on tbis trial plaintiff declared for a breach of tbe contract of *46bailment at common law. He showed that he was the owner of the slave, George, in question; that he escaped from on board a steamboat on the Pee Dee river, in the month of January, 1853 ; that-soon afterwards he was apprehended in the county of Robeson, and delivered as a runaway to the defendant who was the sheriff of that county, who committed him to the jail of that county.

It .was further proved, that the body of the slave, George, was found, about two weeks after being delivered to 'the defendant, in a well in the same county, with marks of violence upon it which produced his death.

It was further proved, that the jail was, at the time the slave was committed! in such condition, that prisoners had repeatedly escaped, both before and after the commitment of the slave ; that he did escape in a few days after he was put in, and that this insecurity was known to the defendant. The next morning after the escape, the door of one of the cells was found to have been forced. An opening had been made through the wall of the jail by means of an iron spike or other piece of iron; the slave had gone out through it, and by means of blankets tied together, he had let himself down from the upper passage of the jail. The cell in which the slave had been confined was a dungeon, set apart for the confinement of slaves; it was in the upper part of the jail, and George had been put in there by himself; it had two doors in the same frame, one of oak and the other of iron. There was no evidence that the slave was chained, or any other means used to secure his safe keeping, than shutting him up in the prison; nor was there any evidence that any prisoner had ever escaped from this particular room, or that this room was less secure • than any other in the prison. It was proven that the defendant, as jailor, was in the habit of receiving pay for keeping runaways. The value of the slave was $100.

The plaintiff’s counsel asked his Honor to charge the jury, that the defendant did not use due care in keeping the runaway.

The court charged the jury, that as the slave had not been *47committed as a runaway, under tbe statute, the defendant, as^ sheriff, was not bound to receive him; but, having done so, he was bound for his safe keeping. At the time he was delivered to defendant, nothing was said as to how he should be kept, nor as to pay. The manner of keeping him was left to defendant’s discretion, and the law would give him for such service, what was just. The defendant, therefore, was a bailee for reward, and was bound to take such care for the safe keeping of the slave, as a prudent man would have taken for the safe keeping of Ms own property, and to have exercised reassonable diligence and care. Plaintiff says such was the state and condition of the jail, that defendant ought to have chained the slave, in order to his security. Defendant, says the slave was a mere runaway, not charged with any crime, and his confinement in the common jail of the county, was such care as he had a right to suppose would insure his safety. The court said he would leave it to the jury, as a question of fact, to pass on the condition of the jail. If they should find it so very insecure, as to render the chaining of the slave necessary and proper, under the circumstances, for his safe keeping, and common prudence would have suggested such a course, their verdict should be for the plaintiff. But if they should find such to be the condition of the jail, that a man of ordinary prudence would not have deemed it necessary, then their verdict should be for the defendant.

To this charge plaintiff’s counsel excepted.

Verdict for the defendant. Judgment and appeal.

Strangs, for plaintiff.

Shepherd, for defendant.

Battle, J.

The cases to which the counsel for the plaintiff has referred, show very clearly that the presiding Judge erred in not deciding the question of negligence himself, instead of submitting it to the jury. It is a question of law, and not of fact. Thus in the case of Herring v. Wilmington & Raleigh Rail-Road Co., 10 Ire. Rep. 402, it is distinctly declared by *48^tlie Court that, “ what amounts to negligence, is a question of law.” So, in Biles v. Holmes, 11 Ire. Rep. 16, it is said, “ what amounts to ordinary eare is a question for the Court. The Judge below erred in leaving it to the jury.” Again, in Heathcock v. Pennington, Ibid 640, Ruffin, C. J., in delivering the opinion of the Court says, “ It was, however, erroneous to leave the question of due care to the jury, since it is the province and duty of the Court to advise them on that point, supposing them to be satisfied of certain facts.” In Avera v. Sexton, 13 Ire. Rep. 247, the Court found it necessary to repeat, that “ what amounts 'to negligence is a question of law.” Again, in Hathaway v. Hinton, 1 Jones’ Rep. 243, the counsel for the defendant admitted that the Judge had erred in submitting the question of negligence to the jury, but contended that the error was corrected by the proper finding of the j tiry, whereupon the Court said, “ there can be no doubt the Judge ought to have decided the question himself, as has often been decided by this Court.” After these repeated decisions, so recently made, we may well adojff the language of the Court in Beale v. Roberson, 7 Ire. Rep. 280, upon an analagous subject, “It would seem, then, that making a question on this subject, must be regarded as an attempt to move fixed things, and cannot be successful.”

But though his Honor erred in submitting the question of negligence to the jury, it is well settled by the cases to which the defendant’s counsel has referred us, that if the error be corrected by the finding of the jury, no advantage can be taken of it by the plaintiff. See Smith v. Shepperd, 1 Dev. Rep. 461, and Biles v. Holmes, Heathcock v. Pennington, and Hathaway v. Hinton, cited above. The question then remains, was the defendant guilty of such negligence in keeping the runaway, jilaced in his custody, as to make him liable as a bailee at common law ? The bailment was one, from which both parties were to derive benefit, and therefore, the position of the plaintiff’s counsel, that the defendant was bound to use ordinary care, and was responsible for ordinary negligence, is well founded. We approve too, of his -definí*49tion of ordinary care, taken, we believe, from the case of Heathcock v. Pennington; “ ordinary care is that degree of care, which, under the same circumstances, a person of ordi- . nary prudence would take of the particular thing, were it his own; and the case will be varied according to the nature of the thing bailed, the purpose for which it was bailed, and the particular circumstances under which it was bailed.” Let us apply this rule to the case now before us. Considering that the slave was delivered to the defendant as a runaway, and received by him as such, though not under such circumstances as to make him officially responsible under the Statute, (see S. C. 2 Jones’ Rep. 302) he was bound to use means, and exercise care, sufficient under ordinary circumstances, to prevent an escape. Did he do so, is the question now to be decided; and from the testimony, we are led to the conclur sion, that he did use every precaution for the safe keeping of the slave, which could reasonably be required - of him. ILe placed the slave in the dungeon, from which no prisoner had ever been known to escape, though persons had broken out from the other rooms of the jail. He could have done nothing more, unless he had placed a guard around the jail, or had put the slave in irons. The first course would have been too expensive, and the second cruel, and we do not think he was bound to adopt either. A man of ordinary prudence would have deemed the means which he did adopt, sufficient for the purpose, and that is, as we have seen, the measure of his liability. See Boyce v. Anderson, 2 Peters’ Rep. 150; Turrentine v. Faucett, 11 Ire. Rep. 652.

The proper finding of the jury, on the question of negligence, having corrected the error of the Court, in submitting it to them, the judgment must be affirmed.

Per Curiam.

Judgment affirmed.