TALLAHASSEE RAIL-ROAD COMPANY, APPELLANT,

v.

ARTHUR MACON, APPELLEE

PEARSON, J.,

delivered the opinion of the Court,

The exceptions presented by the record in this case and' the errors assigned by the appellant all rest on the refusal of the Judge in the Circuit Court to grant a new trial. The appellant insists that there was-no evidence before the jury to sustain the allegations of negligence, and that the damages were excessive. These questions, which heretofore were confided to the discretion of the Judge trying, the case, have, under the statute of this State, been opened to the review of this Court, and where manifest error has been committed this Court will reverse the order of the-Circuit Court and require a new trial to he granted.

In this case there were but three witnesses examined — - Dr. Betton, a physician, on behalf of the plaintiff, testified, that, c< at the request of Maeon, he visited the slaveEsop on Saturday. He found him very sick with pneumonia. Negro was in a car, one side of which was open. The open side could be closed, but, if closed, there was no opening for the air to enter. Says be ought to have been sent for sooner. The negro had not the necessary conveniences‘and was under the necessity of going in and out of the car according to the exigencies of his sickness; that Esop died on the night of the day witness saw him.”

G-lennon and Dozier, for defendants, testified, that Esop complained for several days and was suffered to lie up in camp ; that they did not think him much sick; that he was up and down, in and out, when he pleased; that they directed he should be cared for, and that he received as much care and attention and fared as well as other railroad hands when sick, including witnesses themselves; that Esop appeared more sick than he had been on the Saturday the Doctor visited him, and they directed a toddy to be given him, and that he should be otherwise cared for; pills were also given him, and the cook woman, had directions to attend to him. Witnesses did not think he was sick enough to need a Doctor; that the car Esop was in was tight and well covered.

The testimony of Dr. Betton was positive that the negro had not the necessary care and attention.; that he was very ill and had for some time needed medical aid. The evidence of defendant’s witnesses proved that none had been provided by the company. The testimony of Dr. Betton, whose services were procured by the plaintiff, was also positive that the negro needed a nurse and other necessaries required in sickness, and that neither were provided; that he was in an open car and under the necessity, in his extreme illness, only a few hours before his death, of going out into the open air. In all of these respects the witness Betton is uncontradicted by the evidence of Glen-non and Dozier. These witnesses speak of their ignorance of the violence of his disease, of directions to the cook woman to attend to him — not of her obedience of the order — of his having the same care and attention that other railroad hands received. They were employees of the company, having charge of the hands, so that they may be regarded in some degree as testifying in their own favor and to excuse their own want of attention — not entirely impartial. We would remark that the evidence seems to be very sparse on the part of defendants if they have indeed been guiltless. They do not offer to establish due care or provision for the sick in their charge, nor proper arrangements for them. As to the value of the negro, why not establish this by better testimony ? There is indeed a deficiency on both sides-here.

The Courts of Southern States, in adjudicating the question as to what shall constitute negligence in the bailee of a slave, have justly and humanely defined the rule to be any failure to bestow that degree of care and attention which a kind and humane master would bestow under the circumstances.- — See Lumsford vs. Baylman, 10 Humphs., 267; Latimer vs. Alexander, 14 Geo., 259; Mitchell vs. Mims, 8 Texas, 6.

In McCraney, Trustee, vs. Johnston & Moore, 2 Florida Reps., 527, this Court, recognizing the general principle, said, in cases of this peculiar species of property,, the American Courts, by a spirit of enlightened humanity, have extended a more enlarged protection than prevail» in cases of mere chattels. Concurring in the wisdom and truth of these decisions on this point, ’this Court is of opinion that the facts proved by the evidence did establish negligence, and that the jury were warranted in so finding by their verdict.

In regard to the other points raised by the appellant, that the damages were excessive and not warranted by the evidence, the witness Betton gave his estimate of his value at from $800 to $1,000, Glennon and Dozier at $250 to $300. They also testified to the slave’s being employed for several years on the Tallahassee Railroad, and of the kind of work in which the negro was employed. From the facts stated, the estimates of witnesses, the jury were enabled to form their opinion of his value, and if the evidence of Dr. Betton and the conclusions resulting from the fact of the continuous employment of the slave Esop by the Tallahassee Bailroad Company for several years outweighed in their minds the statements of the employees Glennon and Dozier, it was not for the Judge, after the verdict, to measure precisely the degree of weight which each particular statement of fact must perforce have on the mind of a jury, and, striking a balance between the two, to set aside the verdict or render judgment as the balance may fall on one-side or the other. To carry the rule for granting new trials thus far would be to invade the province of the jury. "When there is conflicting evidence and the verdict is not manifestly against the weight of evidence, the Court will not interfere to set aside the verdict of a jury. "We do not say that the amount given is the same that we would have given ourselves, but there is not such conflict and variance as to cause us to set it aside.

The general principle is well established, that where an injury arises from the misconduct of another, the party who is injured has a right to recover from the injuring party for all the consequences of that injury. — See 2 Rob. Prac., 549 ; Rigby vs. Hewitt, 5 W. N. and G., 240.

In the case of Harrison vs. Berkley, 1 Strobart, 525, the Courts of South Carolina carried the principle to the extent of holding a person who unlawfully sold ardent spirits to a slave, by means whereof the slave became intoxicated and died, responsible to the owner of the slave for his value. In Duncan vs. Railroad Company, 2 Richardson, 616, the same principle is recognized. In Tennessee, the master is at liberty to regard the wrongful act in a bailee as a conversion and sue in trover, or to bring an action on tbe case, on tbe ground that the wrongful act by the bailee renders him liable for all its natural or immediate consequences, and the death of the slave during the second contract of hire has been decided in these cases to be a consequence of such hiring. — See Bell vs. Cummings, 3 Sneed B., 275; Lumsford vs. Baylman, 10 Hump., 267; Latimer vs. Alexander, 14, Geo., 259 ; Mitchell vs. Mims, 8 Texas, 6; Yeatman vs. Hent, 6 Hump., 375.

We do not consider it necessary on this occasion to affirm the correctness of any or all of these propositions. We give them as the views of intelligent Courts on the subject of this peculiar species of property. When these questions shall be presented for decision, we shall then make up and declare our views free from commitment on either side of the question.

It is a feature in this case worthy of some note, that on neither side were instructions asked from the Court, the parties contenting themselves with leaving the questions of law and fact to the jury. Under such circumstances, we should most obviously feel less inclined to interfere with a verdict than where proper means had been used to enlighten the jury as to the law and facts of the case and to their peculiar responsibilities. Defendant might have raised the questions of law as to the sufficiency of the declaration ; if the proof of plaintiff wras insufficient, moved for a non-suit and asked for instructions as to either the law or facts of the case. Failing to do this, he cannot hope to find a remedy, by a motion for a new trial, in this Court.

The Court are of opinion that there was no error in the refusal of the Judge in the Court below to grant a new trial. The judgment must therefore be affirmed with costs.