ALABAMA AND TENNESSEE RAILROAD V. BURKE, 27 ALABAMA 535 (1855)

Headnotes

The hirer was required to exercise only that degree of care that masters generally used in relationship to their own slaves.

If a hired slave was rehired to another, the original hirer remained responsible to the same degree.

The hirer was not required to call in a physician on every occasion when the slave was sick from some unknown cause.


Facts of the Case

John M. Burke hired slave Allen to the Alabama and Tennessee Railroad for one year (1852) at $200. The railroad employed Allen as an ox cart driver, hauling logs to its mill near Selma. In June the mill moved further up the line into Perry County and Allen was rehired to the Bibb County Steam-mill Company, where he worked in the same capacity. In November he became ill. Eventually, the mill company consulted a physician who, without actually examining the patient, advised sending Allen back to Selma. Then, on a rainy, cold night, Allen went back down the line to Selma, where he was treated by a physician at the request of a third party, diagnosed with dropsy of the chest, and died within forty hours. Burke sued the railroad in Dallas County Circuit Court for the slave's value, $1500. The court refused the railroad's request to charge the jury that no liability existed if they had exercised the degree of care that masters generally used in relationship to their own slaves. The judge also refused to admit the testimony of the physician who had advised sending Allen back to Selma, as well as the testimony of one of the steam mill hands. The court did charge the jury that if the slave was "manifestly sick," it had been the railroad's duty to call in a physician. The jury was further charged that the railroad was responsible if it had been negligent with respect to the disease that killed Allen.

The Company's Argument

Before the Alabama Supreme Court, the railroad company argued that the Circuit Court should have admitted the testimony of the physician who advised sending Allen back to Selma, for it counterbalanced Burke's charge of negligence, as did the testimony of the steam-mill hand, which was also withheld. Furthermore, the railroad objected that the Circuit Court had refused the charge it had recommended for the jury: that no liability existed if they had exercised the degree of care that masters generally used in relationship to their own slaves.

Burke's Argument

Burke argued that the charge suggested by the railroad should have been excluded. Furthermore, the testimony of the physician who advised sending Allen back to Selma was prohibited because the doctor was an agent of the mill company that had rehired Allen. So was the steam-mill hand whose testimony was also excluded. Furthermore, the physician's testimony was based upon information provided by a layman regarding the slave's condition. The rule regarding negligence was that the hirer should use "such diligence and attention as men of ordinary case and prudence take of their own property." Likewise, the hirer was equally responsible for the acts of his servants.

The Court's Opinion

Judge Samuel F. Rice wrote the opinion of the Alabama Supreme Court. He ruled that the railroad had a right to rehire Allen to the steam-mill and was obligated to provide no greater care than masters generally exercised in relation to their own slaves. If Burke had wanted a greater degree of care, he should have stipulated so in the contract. Furthermore, the hirer was not automatically guilty of neglect because the slave was ill, the cause undetermined, and a physician had not been called. Finally, the Circuit Court had erred in refusing to admit the testimony of the physician who advised sending Allen back to Selma, as they had also erred in refusing to admit the testimony of the steam-mill hands.

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