#### WILLIAM T. POOLE v. THE NORTH CAROLINA RAIL ROAD COMPANY.

Where a deaf mute slave, who was walking on a railroad track from the direction of an approaching train, was killed by the train, it not appearing that the engineer knew of the slave’s infirmity, and it appearing that the usual warning was given by the steam whistle for one endowed with hearing to have made his escape, it was held that the company was not liable for the loss.

This was an action on the case to recover damages for negligence in running defendant’s train, tried before Bailey, J., at the last Spring Term of Wake Superior Court.

The plaintiff declared against the defendant for so negligently running a train on their railroad track, as to strike and kill a negro man slave belonging to him.

It appeared in the case, that the slave, Guilford, who was the subject of this suit, was a deaf mute, and was walking on the railroad track with his back to a gravel train, which was approaching him. The engineer in charge of the train had been going at the rate of fifteen or twenty miles an hour, when he saw a smoke ahead of him in a cut, and believing it to be from an approaching train, he slackened speed to about four miles an hour; but perceiving that the smoke was from a coal-kiln, he put on steam, and as he was clearing the smoke, for the first time he saw the negro man in question, on the track, about seventy-five or one hundred yards distant. When the engineer first saw the slave, the engine was gaining speed, and was going at the rate of about from eight to twelve miles per hour. He could have stopped the train when he first saw the slave, but made no effort to do so, because he took it for granted that he would hear the noise of his apjiroaeh, and get out of the way; but on coming to within thirty yards of him, and finding he did not quit the track, he gave the signal to put on the l>mTces, and when within fifteen or twenty steps, gave the alarm whistle, and continued to blow loud cmd quicky until the negro was struck. It appeared that if the slave *341could have heard, he had time to have escaped ■ after the whistle first sounded the alarm. The engineer had no knowledge of the slave’s deafness.

Guilford was a blacksmith, and was worth $1000.

The Court instructed the jury that the plaintiff could not recover. Yerdict and judgment for the defendant, and appeal by the plaintiff.

Miller and G. W. Haywood, for the plaintiff.

B. F. Moore, for the defendant.

Battle, J.

We approve the instruction given to the jury by his Honor, that the plaintiff was not entitled to recover.

The engineer, who had the management of the defendant’s cars, did not know that the plaintiff’s slave was a deaf mute, in the absence of such knowledge, he had the right to presume that the slave had the ordinary faculties of hearing and sight, and that he was endowed with such an instinct of self-preservation, as would prompt him to leave the railroad track, and thus escape the danger of being knocked down and run over by the approaching cars; see Herring v. Wilmington and Raleigh Railroad Company, 10 Ired. 402; Couch v. Jones, 4 Jones 402. Had the engineer omitted to give the ordinary signals for warning persons to leave the track of the road, it would have been deemed negligence, for which the the defendant might have been held responsible. But it appears from the testimony, that he did every thing to avoid the catastrophe which prudence or humanity could dictate, and his efforts proved vain only because the infirmity of the slave prevented his profiting by them. See Aycock v. Wilmington and Weldon Railroad Company, 6 Jones, 231.

Per Curiam,

Judgment affirmed.