#### JANE C. KNOX v. NORTH CAROLINA RAIL ROAD CO.

Where the hirer of a slave agreed with the owner, that he should work all the time under the eye of a white overseer, and the contract was violated by putting the slave to work with other slaves without a white overseer to direct or control them, during which time, the slave was killed by a blow from an unexplained source, it was Held that it devolved upon the defendant to show that it resulted from a remote and unforeseen cause, otherwise, the hirer was responsible for the value.

Action of Assumpsit, tried before Bailey, J., at the last Term of Eowan Superior Court.

The action was brought to recover for an injury done to Alfred, a slave, hired to the defendant upon a special contract. The evidence was that the plaintiff had a life estate in the slave in question, and as such hired him to the defendant for the year, 1855, and that it was agreed “ that Alfred was to work upon the railroad under the eye of a white overseer all the time — under John Khodes who was one of the overseers upon the said road.” It was in evidence that Alfred and other slaves were placed upon the road under John Bhodes, and that he divided the hands into several companies — the slave Alfred, and five others, were placed on the road in.Davidson, as a waggoner, to haul sills along the road, and that no white *416overseer was with them to superintend and control them; that Rhodes went on the business of the road to Charlotte, forty-five miles distant; that he had been absent from the company where Alfred was, four or five days, when this slave received an injury on the head which killed him in some eight or ten days; that when Rhodes heard of the hurt to the slave he came immediately to the place where Alfred was, and found him lying in a shantee with the appearance of having received a blow on the side of the head which fractured his skull; that Rhodes put these five slaves to work by themselves without an overseer, because they were the most trusty slaves on the road. Rhodes testified that the nature of the business in which he was engaged, required that he should divide the hands in his charge into companies, and that he was first with one company, and then with.another as the business required, that frequently he was away from the company in which Alfred worked, several days together. It was several days after-Alfred was hurt before medical aid was rendered him.

The- Court charged the jury, that there was a violation of the contract on the part of the defendant, in not having a white overseer with Alfred while he was at work upon the railroad, and that the plaintiff was entitled to recover; but, as it did not appear that the blow was given, and the slave’s death occurred, in consequence of the overseer’s absence, or how the injury happened, the plaintiff-was only entitled to nominal damages. Plaintiff excepted.

Fleming, and Clement, for the plaintiff.

Boyden and Jones, for the defendant.

PeaesoN, C. J.

Ilis Honor assuming that there was a violation of the contract on the part of the defendant, held that the burden of proving the cause of the death of the slave was on the plaintiff, and that in the absence of such proof, she was entitled only to nominal damages.

This Court is of opinion that it was for the defendant to prove how the slave was killed, for the reason- that the violation of *417the contract, put the defendant in the wrong, and it then became matter of exculpation, by way of mitigating damages, to show that the injury was the result of accident, and could, in no degree, be attributable to the fact of the violation of the contract; for instance, that the slave had been killed by a stroke of lightning, or the falling of a tree in a sudden storm, or died of sickness. Clearly the burden of proving matter, which is only allowed in mitigation, must be on the defendant.

The principle is this, when a contract of bailment is violated, and the property is damaged, prima facie it is an injury for which the bailee is liable, because, in the absence of proof as to how the matter occurred, thereNs no telling whether it would, or would not have happened, but for a breach of the contract, and the bailee being in the wrong, it is for him to relieve himself from blame, in respect to the actual loss, by proving that it happened in such a way as to show that it could, in no wise, be attributed to the fact of the breach of the contract, or be considered as a consequence thereof, but was an accident unlooked for and unforeseen, and such as could not have reasonably been presumed to have been in contemplation of the parties when the contract was made, so as to show that the loss was damnum absque i/n-jim-ia.

It was suggested, in the argument, that Bell v. Bowen, 1 Jones’ Rep. 316, and Ashe v. De Rosset, 5 Jones’ Rep. 278, seemed, in some measure, to conflict. But we apprehend, although there is, confessedly, some difñculty in making the application, the principle above stated, fully sustains the difference in the two cases, and the dictum of Twidy v. Sanderson, 9 Ire. Rep. 5. In the former, it was in the contemplation of the parties, when the contract was made, that the life of the slave would be in more danger if he was taken out of the county, and the bailee took the risk on himself, in the same manner that the law puts it on a bailee, who violates the terms of the contract; consequently, it made no difference how the slave lost his life, whether by sickness or the *418falling of a tree, for all kinds of exposure were guarded against, and death from any cause, while the slave was out of the county, was considered not to be a loss too remote to be included in the damages. In the latter, the burning of the rice was considered not to be a consequence of an omission to beat it in its turn, which could reasonably be presumed to have been in the contemplation of the parties when the contract was made, but was a mere accident unlooked for and unforeseen, which could, in no sense, be attributed to the omission, and the damage was held, therefore, to be too remote.

Our case falls on the side of Bell and Bowen ; for it is evident, that it was in contemplation of the parties that the life of the slave would be more exposed if he was left to work with others, without an overseer or with a black overseer, (who could not prevent fighting and other kinds of disorder) than “ if he was under the eye of a white overseer all the time; and as the contract, in this respect, was violated by the defendant, and the slave lost his life, the damage is prima, facie, attributable to such violation, and matter of exculpation, as that he was killed by lightning, or the falling of a tree in a sudden storm, or from sickness, in respect to which, the presence of a white overseer could have had no effect, one way or the other, must be proved by the defendant; for being put in the wrong, he is liable to an action, and the plaintiff is entitled to recover the amount of his loss, unless the defendant can reduce it to nominal damages, by showing in mitigation, that the actual loss was a consequence so remote, as in no wise to be attributable to the absence of a white overseer. Venwe de novo.

Per CuRiAM, Judgment reversed.