Opinion
(June Term, 1861.)
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, 40 miles, to a place deemed more favorable to the patient, where he remained one day in proper hands without a physician being called in, and was then sent 3 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.
CASE for negligence in taking care of a slave, Dick, hired to defendant, tried before Howard, J., at Spring Term, 1861, of DAVIDSON.
Kittrell for plaintiff.
B. F. Moore and Gorrell for defendants.
The plaintiff hired to the defendant a healthy, able-bodied slave (363) 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 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 teaspoonful 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 down to the road and went on the train to Holtsburg, forty miles from where he had worked, taking with him a note from the section master to 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 10 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 had 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 sent for Dick. 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, a low, 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 recovery. Dr. Whitehead, of Salisbury, came to see the patient. He said he thought the case was well nigh hopeless, (364) 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.
Dr. 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 developments 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 the damages to $800.
The court being of opinion that there was such negligence on the part of the defendant's agents, both in sending the slave by railroad and in not sending for a physician while the slave was at Holtsburg, and sending him off in the buggy, as to make them liable, gave judgment for the plaintiff, and the defendants appealed.
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 under similar circumstances; Heathcock v. Pennington, 33 N.C. 640; (365) Couch v. Jones, 49 N.C. 402. Whether, where a slave is sick, the hirer is bound, without an express agreement to that effect, 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 any direct 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, 27 N.C. 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 pursued the same course in a similar conjuncture of circumstances. It was testified by a physician that the agent under whom the slave was working at the time when he was taken sick could not have discovered that the disease was typhoid fever, and we are not informed that he knew or had any reason to suppose that the sending him on the cars to Holtsburg in the cool of the morning would aggravate the symptoms. After the arrival of the patient at Holtsburg, it was a question, admitting of some doubt, whether it was better to keep him at a country depot, at which we are not 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 not 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 plaintiff 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 infrequently seize the most hardy and vigorous (366) persons and bring them to the grave in spite of 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 order
PER CURIAM. Venire de novo.