#### DAVID GEORGE v. THOMAS M. SMITH and others.

To give a slave a pass to travel by a railroad, as an indulgence, does not amount to a breach of an agreement to 'work the slave only as a turpentine hand.

It does not amount to negligence in the hirer of a slave so as to subject him for an injury occasioned by the slave’s falling from a railroad train, that the hirer gave him a pass to travel on the train, although he knew that the slave was addicted to getting drunk.

Wherever a Judge, trying a suit, is called upon to charge upon a distinct point of law, it is his duty to do so explicitly, and it is error to mix it up in his instructions, indistinctly, with other points of the case, or leave his views . if the point to be gathered from inference.

Action on the case, for an injury to a slave hired by plaintiff to the defendant, tried before Saundees, J., at the last Eall Term of Columbus Superior Court.

The plaintiff declared:

1st. Specially that he hired the slave, Edmund, as a tur*274pentine band, and for that purpose only, and by the defendants’ otherwise employing him, he was injured.

2ndly. For negligence, &c.

The evidence was, that the defendants were partners in the turpentine business ; that one of them said to the plaintiff’s agent, at the time of hiring, that he wished to hire negroes for the purpose of getting turpentine; that the agent replied, he understood that Edmund was a number one turpentine hand. The witness who deposed to the foregoing facts, stated that this was all that was said between the parties on the occasion of the hiring.

The clerk of the defendants stated that Smith, one of the defendants, instructed him that if Edmund applied for a pass, to go by the railroad to Wilmington, to give it to him; that a few days before the slave was injured, he did furnish the slave with such a pass. It was also in evidence, that Smith said the negro was very bad for liquor. The negro in question was found, about four miles from Wilmington, lying on, or near, the railroad track, greatly injured ; having been hurt, as the attending physician thought, by the train. An empty bottle was found near the negro, which smelt of spirits, and he had the appearance of having been drunk.

The counsel for the defendants, asked the Court to instruct the jury, that the evidence did not support the first count, and that it was not a case of negligence. These instructions were declined by his Honor, and the defendants’ counsel excepted.

The Court charged the jury, that to entitle the plaintiff to a verdict, they must be satisfied :

1st. That the defendants hired the negro as a turpentine hand, and for that purpose alone.

2ndly. That the pass was given by order of the defendants, for the negro to go to Wilmington by the railroad.

3rdly. That the negro was a drunkard, and that the defendants knew it.

4thly. That the negro went towards Wilmington by the railroad — got drunk, and in consequence of being drunk, *275either fell, or was thrown from the cars, and was thus injured.

Defendants’ counsel again excepted.

Yerdict and judgment for the plaintiff, and appeal by the defendants.

E. G. Haywood, for the plaintiff,

London, for the defendants.

Pearson, C. J.

There was no evidence to support the first count, and the defendants were entitled to the instruction ashed for in respect to it. If we suppose there was evidence to justify the conclusion that the slave was hired exclusively for the turpentine business, and was to be put to no other sort of worh, there is not the slightest evidence that the contract was violated in this particular. Surely, giving a slave a pass to go on the railroad to Wilmington, does not support the position that he was used or worked in any other way by tire defendants. On the contrary, it was a leave of absence from work. The error in refusing to give the instruction is not cured by the manner in which the jury were charged. His Honor ought, either to have given it, or refused to do so directly, so as to make a point. The matter is mixed up, and the two counts confounded by the four positions, which are laid down, the first being relevant to the first count, and the last three to the second. The necessity of proving the allegation, that the slave was used or worked by the defendant in a manner not allowed by the terms of the contract, is not adverted to in the charge.

W e also differ with his Honor upon the question of negligence, involved in the second count. To allow a slave to be carried as a passenger on a railroad, certainly does not amount to negligence, and the circumstance that the negro is addicted to getting drunk, does not make it so in the absence of proof, that he was drunk and helpless when he was allow’ed to get on the train, otherwise it would be necessary to confine negroes of that description; which would prove that they were aot fit to be hired out. It is said in Woodhouse v. McRae, 5 *276Jones’ Bep. 1, “ It will not do to say that under ordinary circumstances, one who hires a slave near the border of the State, must guard him by day and imprison, or chain, him by night, to prevent him from fleeing across the line.” This applies to our case; the only difference being that, here, the slave was addicted to getting drunk,- — -there, the danger to be apprehended, was the facility of escaping out of the State.

There is error, and a venire de novo is awarded.

Per Cueiam, Judgment reversed.