#### WILLIAM K. LANE v. JOHN O. WASHINGTON & J. B. BURDICK.

Where a plaintiff declared upon a special contract to provide slaves, hired to work upon a railroad, with good accomodations, also on the implied contract of bailment to provide them with ordinary accommodations, it was held that the lodging of the slaves, in the dead of winter, in huts built of poles and railroad sills, without door shutters, and without chinking in the cracks, which were large, and which huts were proved to be inferior to others ordinarily used for such purposes on railroads, was a breach of the contract as alleged in both counts, and entitled plaintiff to recover.

This was an action on the case, tried before Saunders, J., at Pali Term, 1860, of Wilson Superior Court.

The plaintiff declared in five counts, as follows :

1st. For a breach of contract in taking the slaves Jack, George, Wright, and Abram, below Bear Creek.

2d. For a breach of contract in not taking good care of said slaves, and furnishing them with good accommodations.

*2493d. For breach of the implied, contract, arising on the bailment, to take ordinary care of the said slaves.

4th. For the hire of said slaves, Wright, Jack, and George, nine days each, at eighty cents per day, and for the hire of Abram, six days, at eighty cents per day.

5th. For the hires of said slaves, for the times mentioned in the 4th count, for what they were worth.

The title of the plaintiff, to the slaves in question, was admitted. The plaintiff introduced one Bedford, who testified, that prior to the heavy snow storm of January, 1857, as the agent of the plaintiff, he hired said slaves to the defendants, who were partners in a contract for making the Atlantic Rail Road, at the rate of eighty cents per day; that they were not to be carried below Bear creek, a point on the line of said railroad ; that the above contract was made with the defendant Burdick; that on the next day, Burdick told him that he wished to take the said slaves below Bear Creek, into the edge of Dover swamp, below Kinston ; that he (witness) told him that if they were well taken care of, he would as soon they should work there as any where ; that Burdick replied that they should be well taken care of, as defendants had good accommodations there for a hundred hands; that he (witness) replied that on those terms they might go; that the slaves were carried off by Burdick, on that or the next day ; that they were gone some eight or ten days, when Wright, George and Jack came home frost bitten ; that Wright died of plmeumonia, about ten days thereafter, and the other two were laid up about two months; that he never saw Abram after the hiring, but learned that he died in Kinston ;' that this was about the 29th of January, 1857, a short time after the heavy snow storm which occured in that month. The witness further testified that during the week succeeding the return of the slaves, he went down to the place where the slaves had been at work, in the edge of Dover swamp ; that he examined the shanties erected by the defendants for the accommodation of the hands; that there was one at the Heritage place, where the overseer stayed, near where the country road cross*250ed the railroad, and on the right hand side of the country-road going to New Berne; that this was a square pen, made of pine poles, with large cracks, through which one might thrust his double fists, and scarcely seven feet high; that there was no shutter to the door; that the top was fiat and covered with plank, and that it would not shed water; that there was no chimney and no floor, no bed clothing and no cooking utensils, and that the fire was made’ in the middle of the house. The witness further swore that there was another shanty, above the Heritage place, at Tracey swamp.; that this one was some thirty or forty feet long, and from sixteen to eighteen feet wide, built of pine poles; that there were large cracks between the poles not half stopped, and loose planks laid down for flooring; that along the centre of this cabin, and at the distance of a few feet from each other, logs were placed on the ground, and earth placed between them as a place for building fires; that it had no chimney, but instead thereof, there was an aperture, three feet wide, at the top of the roof, for the escape of smoke, but that this shanty had á door to which there was a shutter. Witness further stated that there were other shanties for the accommodation of the hands, just below the Heritage place, at the distance of a mile or a mile and a half; that these latter were made of cross ties or sills of pine timber, eight feet long, and from. eight to ten inches square, used in the construction of the railroad track; that these ties were placed on top of one another, to the height of some six feet, on three sides, thus leaving one end or side entirely open, that the covering was also composed of these ties, placed near together, and he saw no other shanties for the accommodation of hands ; that those above described were nothing like as good as are ordinarily used on works of the kind, and were nothing like as good as an ordinary horse stable. Witness further stated, that he saw, during this visit, at the Heritage place, one Parrott, an overseer of the defendants on this work ; that Parrott told him that if he had been well, the slaves in question would have been better attended to, “ that it was a bad chance there any how;” that *251Parrott also told him that the slaves stajmd “just below there,” pointing in the direction of the shanties last described. The witness further stated that he had seen other shanties on the Wilmington & Weldon railroad.

Dr. O. D. Dewey testified that he was ealled to see the boys George, Wright and Jack, on the 21st of January, 1857; that they were frost bitten — George badly — Wright not so badly, and Jack slightly; that Wright died in about two weeks, of typhoid pneumonia, and that he complained of having suffered from excessive cold for two weeks. He further stated that the other two would be more liable to be frost bitten after this. Wright had no cold that he could see, at his first visit.

One Robertson testified that he had been travelling through there some time previous to the snow aforesaid; that he had seen the cross tie shanties, and one, which he supposed to be the Tracey swamp shanty, which was at the Heritage place, on the right hand side of the stage road, leading to New Berne; that none of the chinks were shut; that it had no ehimney, and had a flat roof; and that it lacked a great deal of being as good as ordinary, and would be a very poor horse stable ; that these shanties were about ten steps from the road, and that he had never been nearer than this to them; that the only other shanties he had ever 'seen, for such purposes, were on the N. O. Rail Road.

John C. SloGurnb stated the conversation between Raiford and Burdick to have been as follows : Burdick said he would like to take the slaves below Rinston, into the edge of Dover swamp. Raiford asked if they had good accommodations. Burdick replied, yes, for a hundred hands. Raiford replied if the accommodations were good, and the hands would be well taken care of, he would let them go.

Another witness testified to the same conversation, giving as Raiford’s last reply, that he did not wish the hands so far from home, but would not object to their going down for two or three weeks, provided the accomodations were good.

O. Loftin testified that he lived in Dover, about *252four miles below the Heritage place, and had seen these shanties ; that he had never seen any as poor, (sorry) any where else, and that they were not as good as an ordinary stable ; that the Tracey swamp shanty, on the west side of the swamp, had a roof with an opening along the top, some three feet wide, that it had large cracks, was made of pine logs, and was twenty five or thirty feet long, and fifteen or eighteen feet wide; that the cross tie shanties were about a mile and half below the one just described ; that he had four negroes in the defendants employment, who stayed at these shanties, and that two of them were frost bitten, though he had heard that one of them had fallen into a ditch, and remained there some time; that at the time of the snow storm, the hands of defendants were at work on the road, a quarter of a mile below tire Heritage place, in the edge of Dover swamp. On cross examination he stated that these shanties did not deserve the name. He further stated, that the only other buildings of a like nature he had ever seen was as he passed along the line of railroads after their completion, and, also, that he did not examine these shanties till after this suit began. He further stated, that the defendants had no other accommodations for hands, at, or near the edge of the swamp. He also stated that the Tracey swamp shanty could not be seen from the stage road, so as to be examined, and that he did not go near enough to it, to see how the logs were laid for building the fire, or how the planks were laid for sleeping.

None of the witnesses knew whether the slaves in question • had remained at the shanties during the snow, nor when they had left the employment of the defendants, nor which of the shanties they occupied, except from the conversation between Raiford and Parrott.

The defendants’ counsel was proceeding to state the defence, when his Honor announced that he should instruct the jury, that, upon the plaintiff’s own evidence, there was no breach of the contract declared on in the 1st, 2d and 3rd counts, and no want of ordinary care. That on the 4th count, there was a special contract of hiring, and the plaintiff was entitled to *253recover, at the rate of eighty cents per day, for each slave while in the defendants employment, if the witnesses were to be believed. The case was then put to the jury, when his Honor charged them as above set forth. Plaintiff excepted to this charge. The jury found for the defendants on the 1st, 2d and 3d counts, as also on the 5th, and for the plaintiff on the 4th, ($25). There was a judgment for the plaintiff for $25.00, from which he appealed to this Court.

Strong and Dortch, for the plaintiff.

McRae, for the defendants.

Battle, J.

The second count of the plaintiff’s declaration was for a breach of the contract, alledged to have been made by the defendants, to take good care of certain slaves, whom they had hired, and to furnish them with good accommodations. And the third was for a breach of the implied contract, arising from the bailment, to take ordinary care of the slaves. Upon the testimony given on the part of the plaintiff, in support of these counts, the presiding J udge held that, taking it to be all true, it did not prove a breach of either of them, and that, therefore, the plaintiff could not recover upon either of them. The opinion of his Honor, expressed thus generally, in relation to the testimony given by all the witnesses who were examined for the plaintiff, cannot be sustained, if any one or more of them testified to a statement of facts, which in law, made put a case of a neglect of the defendants to take good care^£, and furnish good accommodations to the slaves in question, as applicable to the second count; or of a want of ordinary care, as applicable to the third count.

A critical examination of the statements of each of the witnesses who testified as to the kind and condition of the lints or shanties in which the slaves were lodged at the time when they were injured, has brought us to the conclusion that at least two, if not more of them, prove a breach ef both the counts. The only case relied on by the counsel, for the defendants, in support of his Honor’s opinion, is that of Slocumb *254v. Washington, 6 Jones’ Rep. 357. A reference to the questions discussed and decided in that case will show that, if it does not actually oppose, it at least yields no support to the proposition for which it is cited. In the course of the trial in that case, the second count of the declaration, which was for want of proper care in keeping and providing for certain slaves hired to work on a railroad-, the defendants offered to prove “ that the nature of the railroad work kept the hands but a short time at any one place; that the shanty assigned to the hands at the place in question, was as good as those usually erected for the business,” which testimony was rejected by the presiding Judge. This Court held that the testimony ought to have been admitted, giving therefor the following reasons. “The defendants were bound to ordinary care, that is, such care as prudent men, generally, under the same circumstances, and engaged in the same business, take of their own slaves. Hence, it became material in this case, to show what was the degree of care generally practiced by the persons engaged in making railroad embankments and excavations, in respect to the lodging of their own slaves, employed in the work. Eor, certainly, one who hires himself or his slave to serve in a particular employment, must be supposed to understand the usages and ordinary risks in that employment, and to contract in reference to them.” In the case now before us, the witnesses were permitted to describe the kind and condition of the huts or shanties, in which the plaintiff’s slaves were lodged, and each one who speaks on that subject says they were inferior to those ordinarily provided for slave laborers on railroads. Mr. Raiford says that the accomodation for the railroad hands, “were nothing like as good as are ordinarily used on works of the kind, and were nothing like as good as an ordinary horse stable.” Mr. Hobmson says that those he saw at the Heritage place, “ lacked a great deal of being as good as ordinary — they would be very poor horse stables.” He said further, that they did not look to be as good as those he had seen on the North Carolina railroad. Mr. Loftin states that “he never saw any shanties any where else, as *255poor (.sorry) as those at the Heritage place — that the latter were Dot as good as an ordinary horse stable.” On cross examination he said that the shanties did not deserve the name. It is stated in the bill of exceptions, that none of the witnesses knew whether the slaves in question had remained at the shanties during the snow, or the time when they had left the employment of the defendant, nor which of the shanties they occnpied, except from the conversation between Eaiford and Parrott. In these respects, this case differs materially from that of Slocumb v. Washington, above referred to, in which it appeared, affirmatively, that the plaintiff’s slaves were frost bitten and injured, not by remaining in their hut, where other slaves were proved to have remained during the snow storm, and thereby kept themselves unharmed, “ but on their journey to their master’s in another county, undertaken and performed without the direction of the defendants and against the orders of the manager.” In this case ~W. O. Loftin stated that he had four hands in the. defendants employment who stayed at these shanties during the snow, and that two of them were frost bitten, though he had heard that one of these two had fallen into a ditch, and remained there some time.

The result of our examination of the testimony is, that the lodging of the plaintiff’s slaves in any of the shanties, describ ed by the witnesses, was not the taking such care of them as a man of ordinary prudence would take of his own slaves employed in similar business, much less, was it the taking good care of them and furnishing them with good accommodations. For the error committed by his Honor, in his instructions, in relation to the second and third counts, there must be a reversal of the judgment, and the grant of a venire ele novo, and this renders it unnecessary for us to notice, particularly, the other points made in the case. The reversal of the judgment in the plaintiff’s favor, on the fourth count, follows, necessarily, from the grant of a new trial to him on the second and third;

Per Curiam,

Judgment reversed, and a venire de novo.