LOUISVILLE AND NASHVILLE RAILROAD CO. v. YANDELL.

COURT OF APPEALS OF KENTUCKY

56 Ky. 586 (1856)

Judge CHENSHAW delivered the opinion of the court:

In August, 1855, Yandell hired his negro man [i.e., his slave], Henry, to the Louisville and Nashville railroad company for the price of twenty-five dollars per month. It is not disputed that Henry was hired to the defendants to be employed by them in labor connected with the business of running trains upon the railroad; and the duty which was assigned him was that of connecting cars with the locomotive, and also of attending to the brake at the front end of the car nearest to the engine. In November, 1855, a train of cars left Louisville for Shepherdsville, under the superintendence of the conductor, Henry being aboard. It appears that two wood cars were carried out, in connection with the train, about five miles from Louisville, and there left to be loaded with wood, and to be pushed back to Louisville upon the return of the train from Shepherdsville. After the train was disconnected from the wood cars, and had gone on to Shepherdsville, Craig, who had procured the wood cars to be carried out from Louisville, separated them, and when the train returned from Shepherdsville, they were on the railroad about two hundred yards asunder. When the locomotive approached the first wood car, the negro man, Henry, as was his duty and business, got down from the train, and while it was stationary, fastened the first wood car to the locomotive. He then took his stand upon the pilot block, which is a part of the cow-catcher, and remained there until the train started and came in collision with the second wood car. This collision was so severe as to prostrate the witness, Walker, who was standing upon the first wood car, and to cause Henry to fall from his position on the pilot block, whereby his leg was crushed from the knee down to the foot. The injury was so severe as to render it necessary to amputate the fractured part of the limb, and to reduce greatly the value of the slave, if not to render him valueless.

This suit was brought against the railroad company to recover damages for the injury done to the slave in consequence of the collision with the wood car, which is averred to have occurred in consequence of the negligence, carelessness, and improper conduct of the conductor and engineer of the train. There was a demurrer to the petition, upon the ground that the facts stated did not show a cause of action. The demurrer was overruled, and whether the court erred or not, in overruling the demurrer, is the first question for consideration.

It is not insisted, as we understand the argument of the counsel of the defendant, that the facts stated in the petition, and the averments therein, of negligence and carelessness, would be insufficient to manifest a cause of action, if the case were one of ordinary bailment to an ordinary bailee. But the ground assumed is, that the bailment was to a railroad company engaged in an enterprise more or less hazardous; that the implied understanding was, and in the nature of the thing ought to be, that the master of the slave ran the risks incident to the employment in which the slave was to be engaged, and, moreover, that the law is, as determined in a variety of adjudications in several of our sister States, that railroad companies are not responsible for injuries occasioned to their employees while engaged in the offices and duties necessary in the management and conduct of their locomotives and trains; that this law is founded in good policy, and should be sanctioned by this court; that the adoption of this principle of law is indispensable to the safety of passengers, and necessary to stimulate each employee to the faithful discharge of his duties; that when each is aware of the irresponsibility of the company to him, he will not only be more prompt, careful, and attentive to his duties, but will excite others to the discharge of theirs, and report them to the proper authority for neglect or mismanagement; that the good conduct of all the employees will be thus promoted, and the safety of themselves and of the passengers increased.

Whatever may be the wisdom and policy of this rule of law, when applied to free persons employed in conducting and managing locomotives and trains upon railroads, we do not hesitate to reject its application to the present case, in which a slave was an employee; and it is to be remembered, that in all the adjudications relied upon by the defendant's counsel, as establishing the principle of law contended for by him, the rights of free persons were involved, and not the rights of the owners of slaves. There is, in our opinion, manifest propriety in distinguishing between the two classes of cases involving free persons on the one hand and slaves on the other, and in applying a different rule of law when a slave is an employee.

A slave may not, with impunity, remind and urge a free white person, who is a co-employee, to a discharge of his duties, or reprimand him for his carelessness and neglect; nor may he, with impunity, desert his post at discretion when danger is impending, nor quit his employment on account of the unskillfulness, bad management, inattention, or neglect of others of the crew. Whatever may be the danger by reason of any of these causes, he must stand to his post, though destruction of life or limb may never be so imminent. He is fettered by the stern bonds of slavery--necessity is upon him, and he must hold on to his employment. Slaves, to be sure, are rational beings, but without the power of obeying, at pleasure, the dictates of their reason and judgment. Whether, therefore, the doctrine which has been applied in other States, of the irresponsibility of railroad companies to their free employees for casualties happening upon the road, through the carelessness of some of them--all being co-workers in a common business--we do not perceive the propriety of applying this doctrine to the present case, in which an injury to a slave is the complaint.

We think, therefore, that this case should be determined by the well-known principles which have been heretofore adopted by this court in cases of the bailment or hiring of slaves. It is true that when the owner of a slave hires him out to operate in a hazardous employment, he must be understood as risking the dangers incident to the employment. But the bailee should be held accountable for injuries inflicted upon a slave through the negligence and carelessness of himself or agents, as well when employed in hazardous enterprises as when employed in the common avocations of life. If an injury results to a slave in the one, or in the other case, which is attributable to the mismanagement or negligence of the bailee or his agents, there is, in each state of case, an equal propriety in holding the bailee responsible. The petition in this case charged the injury to have occurred through the negligence and carelessness of the conductor and engineer, and this charge, together with the other facts stated, manifested a cause of action, and the demurrer was properly overruled. And were the instructions of the court to the jury free from objection, the verdict would not be disturbed.

But the third and fourth instructions, given at the instance of the plaintiff, do not contain the law applicable to the case, and ought not to have been given.

The defendants were only bound to the observance of ordinary care and diligence--that is, such care, caution, and prudence as persons generally, in the same circumstances, would observe toward their own slaves. But the third instruction renders the defendants liable, if the injury to the slave could have been avoided by the utmost care and caution.

The criterion of recovery adopted in the fourth instruction is also erroneous. The jury are told that they may find damages equal to the value of the slave before he received the injury, when the evidence was rather calculated to produce the conclusion that he was still of some value. This instruction was improper and misleading.

The instructions asked by the defendants were properly refused. The first one assumes that the defendants are not responsible, if the injury which resulted to the slave were incident to the employment. Now, we understand that incidental injuries are such as may necessarily occur from the very nature of the employment, and we have already said that for these the defendants would not be liable. But the testimony does not go to show that the injury in this case was a mere incident to the employment. The testimony rather conduces to show that it was occasioned by neglect and carelessness, and might have been prevented by the exercise of due care. The proof, indeed, shows clearly that the injury was not a mere incident to the employment--a necessary result appertaining to the employment.

In regard to the second instruction asked by the defendants, we would merely remark, that if, as supposed in the instruction, the slave, Henry, voluntarily took a perilous position, and thereby contributed to the injury, still, it might have been prevented by the observance of due and proper care and caution by the conductor and engineer--that is, by the exercise of ordinary care and prudence by them, the defendants are not exonerated from responsibility.

Wherefore, the judgment is reversed, and the cause remanded for a new trial and further proceedings not inconsistent with the principles of this opinion.