#### JAMES H. HADEN v. NORTH CAROLINA RILROAD COMPANY.

Where a hired slave was taken ill with typhoid fever, and the hirer, not knowing the nature of the disease, sent him on the railroad cars, in pleasant weather, forty miles, to a place deemed more favorable to the patient, where he remained one day in proper hands without a physician’s being 'called in, and was then sent off three miles further to the care of his master, it appearing that the ascertainment of the .existence of that disease, was •a matter of skill, and not within the scope of ordinary intelligence, it was held that although the disease was aggravated by the treatment of the patient, yet, that these facts did not show such a want of proper care and prudent management as to subject the hirer to damages for the death of the slave.

Action on the case for negligence in taking care of a slave, Dick, hired to defendant, tried before Howard, J.j at Spring Term,, -1861, of Davidson Superior Court.

*363The plaintiff hired to the defendant a healthy, able bodied slave for the year 1858, without any special stipulation as to his management, to work as a section hand on the railroad.— He was located on a section about six miles from Charlotte, and on Sunday previous to the time in question, had been permitted to go on a train to see his master. On the Wednesday morning he reported himself to the section-master, (defendant’s agent,) as too unwell to work, whereupon, he was directed to go to the shanties about two hundred yards from the road. In the evening, the section-master went to see him, and found him sitting up. He complained of pain in the head and breast, and said he had been taken with a headache on Monday. The master gave him a teaspoon full of laudanum, and put a mustard plaster to his head. On next morning, the slave was in bed, where he remained all day. He expressed an anxiety to go home, and on the next morning was permitted to do so. He walked d<*wn to the road, and and went on the train to Holtsburg, forty miles from where he had worked, taking with him a note from the section-master to the station agent at Holtsburg, directing him to send word to the owner of the negro, who lived near there, to come for him. The train arrived about ten o’clock that morning. The station agent first saw the slave after his arrival, standing near the track, very weak and scarcely able to stand. He was coughing and spitting blood, and complained of severe pains in his head and breast. The station agent Sad him assisted to a shanty, and after getting through his business went to see him, and had some coffee made for him; he said he had not been able to eat for two days. About 11 o’clock, the agent sent a messenger to plaintiff’s mother, who lived about three miles off, to send for' Hick. About sunset, a servant came with a buggy and took the boy to the house of Mrs. Haden, plaintiff’s mother. Doctor Shemwell was sent for early that night, and found the patient with high fever — alow quick pulse, and very much prostrated. It was a case of fully developed typhoid fever, complicated with an affection of the liver’, and he thought there was hardly a hope of the boy’s *364recovery. Doctor Whitehead of Salisbury, came to see the patient. He said he thought the case well nigh hopeless, but he did all he could for him. His testimony agreed with that of the other physician as to the symptoms. The slave died that night.

Doctor Payne testified that from the description of the slave’s condition on Friday morning before he started for Holtsburg, a man of ordinary intelligence would not have been able to discover that he had typhoid fever, though a physician would.

The Court submitted to the jury the question, whether they believed that the condition of the slave when he arrived at Holtsburg, was the ordinary developements of disease, or whether the disease was materially aggravated, and the danger to the slave’s life increased by the ride. He also submitted to the jury the question of damages, reserving, with the consent of both parties, the‘-'question of negligence. The jury found that the disease was materially aggravated, and the danger increased by the ride. They assessed damages to $800.

The Oonrt, being of opinion that there was such negligence on the part of the defendants’ agents, both in sending the slave by railroad, and in not sending for a physician while the slave was at Hotsburg and sending him off in the buggy, as to malee them liable, gave judgment for the plaintiff, and the defen^mts appealed. .

Kittrrell, for the plaintiff.

B. F. Moore and Qorrell, for the defendants.

Battle, J.

The question, whether the defendant was guilty of ordinary neglect in taking care of the slave hired from the plaintiff, was one of law, which his Honor properly undertook to decide, but upon the facts stated in the bill of exceptions, we do not concur in the opinion which he pronounced upon it. Ordinary neglect is, the want of ordinary care, and that, as applied to a hired slave, signifies such a degree of care as a person of ordinary prudence would take of him *365under similar circumstances; Heathcock v. Pennington, 11 Ire. Eep. 640; Couch v. Jones, 4 Jones 402. "Whether, where a slave is sick, the hirer is bound, without an express agreement, to that effeet, to procure, at his own expense* medical attendance for him, has been a subject of dispute in this State,, and has not yet been settled by an}*- direet adjudication, though it has been decided that if he call in a physician, he, and not the owner of the slave, is bound to pay the bill; Haywood v. Long, 5 Ired. 438. But supposing that the ordinary care which the hirer must take of the slave includes the duty-of procuring- the advice and assistance- of a physician when, necessary, as we are inclined to think, it does, yet, we cannot-find any want of due-care in the circumstances of the present-case. The agents of' the defendant may, possibly, not have-acted for the best, but they seem, to have been desirous of doing so, and we cannot but think the owner’ would, have pur-, sued the same course in- a similar conjuncture of circumstances., It was testified by a, physician that the agent under whom-, th.e slave was working at the time,, when, he was taken sick, could not have dicovered that the disease was, ty.-phoid fever, and we are not informed that he knew,, or had any reason to suppose, that th.e sending him on the ears to.Holtsburg, in the-cool of the morning, would aggravate the-symptoms. After the arrival of the patient at Holtsburg* it wag, a- question admitting of some- doubt, whether it was better to keep him at a country depot,, at which we- are n.ot told that there were-proper accommodations for a sick, person, or- to send him in the cool of the- afternoon, three miles to- the house of the plaintiff’s mother* where he was sure to- have- the kindness and’ care of a, woman’s, ministrations. • Supposing that the agent erred* was his error so obvious a. one, that a man. of ordinary prudence would n.ot have fallen into.it? "We-certainly cannot say that it was. The standard of ordinary prudence and care, is from its. very nature, an, indefinite- one, and the want of it is frequently very difficult to-ascertain. In the present case, we cannot say that the slave would probably have recovered had the course contended for, on the part of the-*366plaintiff, been pursued; nor can we see any necessary consequence of his death from the manner in which he was treated. "We are strongly inclined to the opinion that the disease was one of those which not unfrequently seize the most hardy and vigorous persons, and bring them to the grave in spite the kindest attentions, and the ablest medical skill.

Differing from his Honor, upon the question of ordinary neglect, as applied to the circumstances of the present case, we must reverse the judgment, and order a venire de novo.

Per Curiam,

Judgment reversed.