WILLIAMS AND HITCHCOCK VS. TAYLOR, 4 Port. 234

HOPKINS, J. — This is an action of trespass or the case. It was brought by Taylor, in the Circuit Court of Mobile county, against the plaintiffs in error, as the owners of a steam-boat. The object of the action was to recover the value of a negro man that belonged to Taylor, who, as it is stated in the declaration, had been employed as a steward on the boat, and during such employment was killed, from the carelessness of the agents and servants of the owners.

Upon the trial of the cause, a bill of exceptions was taken by the defendants to the action, from; which it appears, that the slave was killed, as it was supposed, by slipping and falling into the pit of the fly wheel of the boat; and the negligence relied on, to make the defendants liable was, that the fly wheel was not guarded by strips, nailed across posts in the frame, on each side of the fly wheel — the posts having been in the frame, without any strips.

From the bill of exceptions, it appears also, that the boat was in the same condition, when the employment of the slave' commenced, as it was when he was killed, and that captains and pilots of steamboats deposed, it was customary to have strips; that they never knew a boat without them, and it was unsafe to run one without them.

From the instructions which the Court gave to the jury, we understand, it was the opinion of the Court, that any degree of negligence makes owners of boats liable for the injuries suffered by their agents and servants, while they are engaged in the business they had undertaken to do on a boat.

It was anciently held, that a carrier of goods, for hire, was responsible only for ordinary neglect. — t This rule, so far as it related to the conveyance of mere goods, ivas changed long since; but the strict rule upon the subject, which is now recognized, does not apply to the conveyance of slaves as passengers, by a carrier for hire; as the, Supreme Court of the United States decided, in the case of Boyce against Anderson. For such passengers, a carrier is liable only for ordinary neglect.

In that case, it was determined also, that if claves paid no hire for their passage, the carrier would be responsible only in a case of gross neglect. A less degree of negligence makes a carrier liable to a passenger, who has, or is bound to pay his hire, than is required to make him responsible to one, from whom he is to receive no reward. It must require as great a degree of negligence to make an owner of a boat liable to an agent, or a servant, engaged in business on his boat, as it would to give a right of aption against him, to a passeuger, who was bound to pay no reward for his passage.

Neither such a passenger, nor a servant, who is hired to do business on a boat, pays any reward for his passage. By the engagement of such a servant, were he a freeman, he would incur an,obligation to go on the boat, and acquire a right to be there; aud for his services while there, would be entitled to corn* pensation; but for his passage he would pay noth* ing.

In this view of the case, if the servant be a slave, his owner would be entitled to the compensation for his services, and the owner of the boat would be lia-> ble to the master only, for the degree of negligence, which would make him responsible to the servant, if he had been a free man, and had suffered an injury, which did not cause his death.

In such a case, a carrier is liable only for gross negligence, which is defined to be the want of slight diligence, or a failure in the lowest degree of prudence, or an omission to exercise the diligence, which men, habitually careless, or of little prudence, generally take in their own concerns The instruction of the Court to the jury, that if they believed there had been negligence, without specifying the degree of it, the defendants to the action were liable, was erroneous.

But we do not think the rule, which regulates the liability of a carrier to passengers, who pay no reward for their passage, is applicable to the case of an agent, or servant, who is a free man, and knows when he enters into an engagement with a carrier, that the seat of the coach, which he agrees to drive, is without a railing, or that the coach itself is unfit to be used; or, that there is a defect in a boat, which must be a source of danger to him, while he shall pursue the business, that he undertakes to do.

The agent, or servant, takes upon himself the risk of accidents and injuries from causes, of which he has knowledge. He acquires a right by his contract, to go on the boat, and to compensation for the business he may do there, and knows when he enters into his engagement, that he will be exposed to danger while he shall be employed in earning his wages. The carrier exposes himself to the peril for the purpose of earning freight, and the prospect of gain induces the agents and servants to incur the same hazard. Bui the only object of a passenger of any description, is, to be carried safely.

If the servant be a slave, and the master, or his agent, who made the engagement for the servant, knew, when he entered into it, of the defects in the boat, the same' rule is applicable, which would apply, were the servant a free man, and had made the contract himself.But as it does not clearly appear, from the record, that Taylor, or his agent, who hired the slave on the boat,knew of the defect in it, when the contract was made, the judgment would not be reversed, for the refusal of the Court to give the instructions, which were asked upon this point.

From the bill of exceptions, it appears, that the boat had been conveyed to Williams and Hitchcock, as trustees; they had power to receive the profits for a limited time, and at the expiration of the period, to sell the boat, and apply the proceeds of the trust fund to the payment of several debts due from one George Davis, who created the trust; was the former owner of the boat, and to whom the slave was hired. But it does not appear, whether the trustees had a right to the possession of the boat before the day when they would be authorised to sell, and when the slave was killed.

If, at the time of the death of the negro, they had no right to the possession of the boat, they are not liable in any event. The fact stated in the bill of exceptions, that after Davis hired the slave, Williams assented to it,, lias no effect if the trusteees were not entitled to the possession of the boat; he assented to what he had no power to prevent. If Williams hired other hands, when he was not entitled to the control of the boat, the fact does' not affect a case, which has no relation to the hands he did hire.

In no event can the acts of Williams affect Hitchcock, without proof that the latter au-thorised them. Trustees have all equal power, and ought to unite in their acts. They can not act separately, so as to charge each other The last point which we have noticed, was argued and has been examined, because the case must bere-manded; but it need not arise on a future trial, if it Should be proved, that Taylor, or Ms agent, knew of the defect in the boat, when the slave was hired to Davis. Let the judgment be reversed, and the cause remanded. HITCHCOCK, C. J. — Not sitting, 2 pexea, i5P: Story on ®»llment3' 2Fonb.E,