Lewis v. McAfee

1. If a negro be hired to a Railroad for a particular service, and he is used by the Road for a different purpose or service from that intended, and an accident happens to him in the performance of such service that causes his death, the Road is liable to the owner for his value. Most especially is this so, when such accident results from the gross neglect and mismanagement on the part of the employees of the Road.

Case, in Fulton Superior Court. Tried before Judge Bull, at the October Term, 1860. John M. McAfee hired a negro man, by the name of Peter, to the Western and Atlantic Railroad, for the year 1857. The only witness who speaks as to the terms and purposes of the contract of hiring, states that his recollection is, that the negro was hired to do shop work. The negro was put to service on a passenger train, as a train hand, to attend the break and wait upon the passengers. In this capacity he rode on the train from Atlanta to Chattanooga and back, and that he was permitted to ride on the train to Marietta once and sometimes twice a week, to see his wife. The conductor on the train knew that he was thus serving as a train hand, and that he was riding on the cars to Marietta. The negro worked. mostly as a train hand. In the Spring of 1857, the negro boy went aboard one of the trains of said road, (other than the one to which he belonged as a hand,) at the passenger depot in Atlanta, and after riding on the train some quarter of a mile from the starting point, the negro jumped from the steps of the platform of the second car of the train, and was run over by the cars and so injured that he died in twenty-four hours after receiving the injury. The conductor of the train from which the negro jumped and was injured, did not know that the negro was aboard the train, and did not know that he jumped off, until the passengers reported the fact to him. It was a rule of the road, that when a negro hand, belonging or attached to one train rode upon another, for the conductor of the train to which he belonged, or the superintendent of the road, to give him a pass, and no pass was given to Peter to go on the train from which he leaped. It was also one of the regulations of the road, that no train should be put to a speed exceeding the rate of ten miles an hour, until the train had passed the lower switch, on its way from Atlanta to Chattanooga. One witness, who saw the negro leap from the car, testifies that this rule was violated, and that the train by which the negro was injured was running at the time of the injury, and before it had passed the lower switch, and that. the witness, who was a yard master in the service of the road at the time, reported the conductor for running his train in violation of the rule. This witness states that the train was running at the rate of tWenty-five or thirty miles an hour, when the negro jumped from the car. The negro had jumped from trains before, but was not injured, because the speed of the train was not so great. Just before the. negro jumped off, the yard master signed him not to do so. The conductor of the train from which the negro leaped, states that at the time of the injury the train was^ running at the rate of six miles an hour. The negro was worth from $1,000 00 to $1,200 00. McAfee claimed damages for the loss of his negro, and made a demand for a settlement as required by the statute, and a settlement was refused. McAfee then brought an action to recover damages for the loss of the negro. On the trial of the case, the evidence adduced developed the foregoing facts, aud the presiding Judge charged, the jury = “ That to entitle the plaintiff to recover, it must be proven that the slave was killed by the culpable negligence or carelessness of the agent or employees of the Western and Atlantic Bailroad. That when a slave is hired for one purpose, to be employed in a particular service, and is put to a different and more dangerous service, and is killed or injured in consequence of that change in the character of the service, the party hiring him is liable to the owner for the damage sustained; but it must he shown affirmatively, that the injury resulted from the change of employment, or from negligence or carelessness of the party hiring or his agents.” The jury returned a verdict for the plaintiff for $1200 00. Counsel for the defendant moved for a new trial on the grounds: 1st. That the verdict was contrary to law and the charge of the Court. 2d. That the verdict was against evidence, the weight of the evidence, and was unsupported by the evidence on the issues of the case. The presiding Judge refused the new trial, and his decision is complained of as error.