Opinion · Supreme Court of North Carolina

Biles v. . Holmes

33 N.C. 16

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1850-06-05
Topic: general

Pbaksoií, J. What amounts to “ordinary eare" is a question for the Court. The Judge below erred in leav» ing it to the jury. Whether the proof establishes particular facts is for-the jury ; but what is the legal effect of these facts, supposing” them to exist, is lor the Court Accordingly it is settled, that ordinary care, reasonable time, and probable cause, the facts being admitted or proved, are questions of law. Herring v.

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Cited by: 5 opinions

BILESv. HOLMES,33 N.C. 16(1850)

THOMAS BILES v. MOSES L. HOLMES ET AL.

Supreme Court of North Carolina

June Term, 1850.

1. Ordinary care, reasonable time and probable cause, the facts being established or proved, are questions of law, to be decided by the court.

2. The declarations of a slave as to his health and the condition of his body are admissible in evidence in an action brought by his master to recover damages for an injury done to him.

THIS is an action on the case, in which the plaintiff claims mages for an injury to his slave named Green, which has greatly impaired the usefulness and lessened the value of the said slave. The plaintiff declares in many counts; in one set he alleges that the injury arose from the negligence of the defendants; in another set he alleges that the injury arose from the negligence of the agent of the defendants; in a third set he alleges that the injury arose from the want of ordinary care on the part of the defendants; and in a fourth set he alleges that the injury arose from the want of ordinary care of the agent of the defendants, and alleging in each count that the (17) defendants were the bailees of the plaintiff, the defendants having hired from the plaintiff the said slave, to wit, at the gold mines of the defendants, and were bound to take that care of Green which an ordinary man would take of his own property. This suit was instituted by Thomas Biles, as plaintiff, against Moses L. Holmes, John McCoffin, and others, as defendants. The plaintiff introduced John Cauble as a witness, who proved that the defendants had hired from the plaintiff his slave Green, to work at the mine of the defendants at Gold Hill; that he (Green) had been put to work at the bottom of a shaft about one hundred and eighty feet deep, from which the defendants were taking gold ore; that buckets about three feet deep, each capable of holding sixty gallons, were alternately let down and drawn up; as the one was ascending the other was descending, being used to bring up either ore or water to thePage 24surface of the earth; that the witness was in the service of the defendants and was employed as their "lander" at the mouth of the shaft, it being his duty to receive and unload the ascending buckets and to fix and let down the descending buckets, and to put in the descending buckets whatever was to be sent down the shaft; that these buckets were used to bring up water and ore; that in the bottom of the buckets was an aperture four inches square, over which was a valve six or eight inches square and fastened at one end to the bottom of the bucket, which valve being raised at the other end when the bucket was brought up and landed, the water escaped; that when these buckets were used to bring up ore, or to carry down implements to work with, the aperture was closed with a wooden plug nailed in from the outside, and as a further security against anything falling through the bottom of the bucket, the valve was nailed down over the aperture on the inside; that without the valve (18) on the inside, or iron hoops on the bottom, securing the plug in the aperture, the buckets are not safe, and are not in a condition to be used with safety to those who are working at the lower extremity of the shaft; that about 9 o'clock in the morning on 28 January, 1848, as one of the buckets commenced descending, the witness, who was the"lander"of the defendants, dropped into it four iron drills, each weighing five pounds, which instantly passed through the aperture in the bucket at its bottom and one of them struck Green on the head, and fractured his skull, which made the operation of trepanning necessary, and a large piece of the skull bone was cut out. Green was working at that time at the bottom of the shaft directly below the bucket. The witness knew that Green on the head, a white man were then working there together; that drills are implements used by miners in getting the ore; that at the time the drills were put in the bucket there was no valve in the bucket, and there was no iron hoop or strap at the bottom of the bucket to secure the plug; that the witness had been engaged from 12 o'clock at midnight until 9 o'clock the next morning, when Green was injured, the witness being employed during that period as the lander of the defendants in landing and unloading the buckets at the mouth of the shaft; and during the said period the witness had not looked into either of the said buckets, or put his hand in either of them, to ascertain if the aperture at the bottom was properly secured.

Another witness was introduced by the plaintiff and was asked if Green did not complain much of headache when exposed to the sun, and if Green did not state his inability to work in the sun, or to work in any laborious employment. These declarationsPage 25of the said slave were opposed as evidence in the cause by the counsel for the defendants, and they were excluded by the court.

His Honor charged the jury that this was a bailment (19) beneficial to both parties, and that if the defendants had hired the slave Green from the plaintiff, they (the defendants) were bound to take that care of Green which a prudent man would take of his own property; and if the injury complained of in this case arose from an omission on the part of the defendants or their agent, or that care which a prudent man would take of his own property, which was a question for the jury, then the defendants were liable in this action. But if they believed that the defendants or their agent had not omitted on this occasion that care of Green which a prudent man would take of his own property, then they should find for the defendants. The jury rendered a verdict in favor of the defendants. Rule for new trial. New trial refused and rule discharged. Judgment for the defendants, from which judgment the plaintiff prayed an appeal to the Supreme Court, which was granted.

No counsel for plaintiff.Mendenhallfor defendants.

PEARSON, J.

What amounts to "ordinary care" is a question for the court. The judge below erred in leaving it to the jury.

Whether the proof establishes particular facts is for the jury; but what is the legal effect of these facts, supposing them to exist, is for the court. Accordingly it is settled that ordinary care, reasonable time, and probable cause, the facts being admitted or proved, are questions of law.Herring v. R. R.,32 N.C. 402;Swain v. Stafford,26 N.C. 293.

If these were not questions of law, no rule could ever be established, and the legal effect of certain facts, like their existence, would in all cases depend on the finding of a jury, with no mode of having its correctness judged of by a higher tribunal.

Had the jury come to a correct conclusion, the error of the judge in submitting the question to them, instead (20) of deciding it himself, would have been immaterial; but, taking the evidence to be true, there was manifestly a want of ordinary care. A large bucket, with a hole four inches square in the bottom, the fastenings of which were liable to be knocked off, is used nine hours without any examination, and as the bucket commenced descending, four pieces of iron, weighing five pounds each, aredroppedinto it, without looking to see — as might have been detected by a mere glance — that the fasteningsPage 26were off and the hole open; and this, too, when the lives of two men were at stake. "Ordinary care" required that the fastenings should have been examined and the pieces of iron should have been put, notdropped, in the bucket crossways or in such a manner as to prevent them from falling out or dropping through.

As the case will be tried again, it is proper to notice the question of evidence, as to which his Honor also erred.

The object of the plaintiff was to show the condition of his slave: that he had not recovered from the effect of the blow and was permanently injured. For this purpose it was competent to prove how he acted, how he looked, and of what he complained. In fact, this is almost the only kind of evidence by which the condition of body or mind can be ascertained; it is natural evidence or the evidence of facts, as distinguished from personal evidence or the testimony of witnesses. Best on Evidence.

The declarations of a patient to his physician are strong evidence of the state of his health, and only differ from his declarations to a third person because it is less probable that he will feign or state falsehoods to one by whom he hopes to be relieved; but this consideration only affects the degree of credit due to such declarations, and does not affect their admissibility. (21) Whether expressions of pain are real or feigned must be determined by the jury. 1 Greenleaf Ev., 126.

If it be material to ascertain the mental condition of an individual, his conversation at different times is admissible. Upon the same ground, it being material to ascertain the bodily condition of the slave, his complaints of headache when exposed to the sun, and his declarations that he was unable to work in the sun, or to endure hard labor, are admissible. True, one may feign the language of a madman, or may utter false complaints of pain, but the law does not on this account exclude what may be the only mode of proof. It is left to the good sense of the jury, connecting the declarations with the acts and looks of the party and other circumstances, to say how far such evidence is to be relied on.

The statute excluding the testimony of a slave or free person of color against a white man, has no application. The distinction between natural evidence and personal evidence or the testimony of witnesses is clear and palpable. The actions, looks and barking of a dog are admissible as material evidence upon a question as to his madness. So the squealing and grunts or other expressions of pain made by a hog are admissible upon a question as to the extent of an injury inflicted on him. ThisPage 27can in no sense be called the testimony of the dog or the hog. The only advantage of this natural evidence, when furnished by brutes, over the same kind of evidence, when furnished by human beings, whether white or black, is that the latter, having intelligence, may possibly have a motive for dissimulation, whereas brutes have not; but the character of the evidence is the same, and the jury must pass upon its credit.

PER CURIAM. There must be avenire de novo.Cited: Heathcock v. Pennington, post, 642;Lusk v. McDaniel,35 N.C. 487;Hathaway v. Hinton,46 N.C. 246;Brock v. King,48 N.C. 48;Wallace v. McIntosh,49 N.C. 435;Gardner v. Kluttz,53 N.C. 376;S. v.Harris,63 N.C. 6;Pleasants v. R. R.,95 N.C. 203;Emry v. R. R.,109 N.C. 592;Miller v. R. R.,128 N.C. 28. (22)