33 N.C. 16 | N.C. | 1850
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 declarations *25 of 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. 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.,
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, are dropped into it, without looking to see — as might have been detected by a mere glance — that the fastenings *26 were 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, not dropped, 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. This *27 can 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 a venire de novo.
Cited: Heathcock v. Pennington, post, 642; Lusk v. McDaniel,