delivered the opinion of the court:
This was an action commenced, in Leon Circuit Court in 1860. The declaration contained three counts. The first count alleges that the plaintiff was possessed of a valuable slave named Jackson, of the value of $2000, and that Jackson was employed on the trains of the railroad of defendant, and that the. agents and servants of the defendant so carelessly and improperly drove and managed the train and locomotive of defendant, that through the carelessness, negligence, and improper conduct of defendant, by its servant, the .train was run over the slave, and crushed and broke his leg, from which injury lie died.
The second count was in trover.
The third count alleges that plaintiff hired to the defendant the slave Jackson to be employed by defendant as a fireman upon a locomotive engine; that defendant disregarding his contract employed said Jackson in and about other business than that mentioned in the contract, and while so employed the slave was run over, crushed and injured through and from the carelessness, negligence, and misconduct of defendant through his servants, by reason of which injuries the slave died, to the plaintiff’s damage, &c.
The defendant pleaded not guilty, and further, that the injury from which the slave died resulted from the carelessness of the slave and not of the defendant. '
The plaintiff proved by John Bowman that ho was in the employment of the railroad company and acted as their agent in the hiring of hands. The slave Jackson was hired by him for *508the company, of Miles Nash, in January, for the balance of the year 1860, for two hundred dollars. The agreement was that he should be employed as a fireman, to fire up the engine, keep it clean, take in wood and water when oh the road, to assist in working on the engines in the shop. Was'not hired for the purpose of coupling and uncoupling cars, or drawing up trains to be attached to the engine, or for any other purpose than that of a fireman. The work of drawing up a train or separate cars and attaching them to the tender, or getting on and off the engine for the purpose of attaching them together by rope or otherwise, and cutting them loose, and signalling the engineer when to start or stop, was not the work Jackson was hired to perform, hut was entirely foreign to that for which he was employed. There was objection made by plaintiff to the slave being employed in any work which would require him to get off and on the engine to couple and uncouple cars, or in any work except that of fireman, on the ground that he considered it dangerous to couple and uncouple cars, and he did net wish to have him changed from one kind of work to another. It v/ai; Jackson’s duty to attend to the brake on the tender, There was a man employed on the railroad for the purpose of coupling and uncoupling cars at the time Jackson was employed, Was not present when he received the injury of which ho died. The duties of a fireman are to attend to the firing up the engine, keeping it clean, taking in wood and water, and attend to the brake on the tender. I assured the plaintiff that Jackson should be employed in no other capacity than that of fireman, and the contract with the plaintiff was subject to such assurances. I was first employed by this railroad in December, 1857, as engineer. Left the employ of the company in February, 1860. There vrero train hands for the purpose of handling freights, switching cars, and work of that kind. The fireman sometimes assisted, but not as a general thing. I have prohibited them doing such work. I have ordered the fireman to shut the cylinder cocks while the engine was going slowly. *509They frequently shut them on the ground, and got up after the engine started, which I regard as part of their duty. Plaintiff asked more wages for Jackson, in consequence of the risk he would run as fireman, than he asked for him to work in the country. Jackson was in the employ of the railroad company when I went there in lSS1?, as a fireman. It was understood between the plaintiff and myself that Jackson was to perform all the duties of a fireman on the Pensacola and Gulf Railroad.
Miles H. Nash, for plaintiff, testified that the boy Jackson died from lockjaw, the effect of the injury received on the road.' The foot was amputated by surgeons. The boy had been hired to the road before.' He had objected to the manner in which he had been employed, first at one thing, then at another. We hired him as a fireman, and fully discussed the duties of a fireman. The strict duties of a fireman were to be performed, He was not to attend to the coupling and uncoupling of cars, or shifting ears or like work. Was hired to perform the duties of a fireman as understood between Bowman and myself. Was offered the same wages in the country for him to perform duty at. a fireman on an engine. Don’t think I could have got as much on a plantation.
On the part of the plaintiff, John 6. Key testified : The man Jackson was injured in my presence. He got off to attach a rope to the train and engine, and getting back fell, and the wheel ran over his foot. Was ordered off the engine by witness to attach the rope. The train had just come in from St. Marks. After lie had fastened the rope to pull the train down, when the train got far enough he loosed the rope and said, “All right, come back,” then stepped to the engine and fell, and the wheel passed over his foot. The engine was barely moving and had not made more than three revolutions. The duties of a fireman are to obey the orders of the engineer in firing the engine, getting in wood and water,. cleaning up the engine, coupling and uncoupling the engine, attaching cars, and any other work he may be called on to do by the engineer while *510on the road, and when in the shop to do any work he may be called on to do by the master mechanic. I think the injury was his own carelessness, and not the carelessness of the com pany or its agents, or it may have been accidental. I saw him put his hand on the handle of the car to get up, his hand-slipped and he fell, when I immediately reversed the engine and stopped. I have been running for nine years, and have been familiar with the duties of engineer and fireman for eleven years. The distance from where Jackson got oft’ to the point whore we had to stop was the length of three cars. It was not necessary for Jackson to get back on the locomotive until it stopped. It is the duty of a fireman to get off the engine at stations and aid in removing cars and obstructions. They frequently get off and on when the cars are moving. I do not consider it safe at any time. It is the duty of the fireman to get off the engine after it starts, to shut the cylinder cock, and get up again when it is in motion. Have never known any fireman to get hurt in getting on the engine before Jackson.
On the part,of defendant, James. Tuten testified: A higher rate of wages was paid to firemen than to train hands and laborers, because they were employed in more dangerous work. The attaching of a rope from an engine to the train would not bo called coupling cars. It is the duty of the fireman or engineer generally to do this. If the fireman is present and directed by the engineer, it is his duty to connect the engine with the cars.
Vinson testified: I was within fifty feet at the time the accident occurred. After the engineer pulled his train up and had stopped the engine, I saw the boy standing looking toward the carpenter’s shop. I think he was talking to some one in the shop. When the engineer received word to back his engine, the boy started to get on. When the engine had made a tum- or two I heard Mm “hollex-.” He was on the opposite side-from me. The train was on one track, the exxgine on the othex-. There was plenty of time, from the time the x'ope was loosened-*511to the time the engine started, to have got on before it started. He was hurt after the engine had stopped and the rope detached. Getting out to attach a rope to the train and engine would not be called “ coupling cars.”
The testimony being closed, the court charged the jury as requested by the counsel for the respective parties, and no exceptions were taken to the charge. The jury returned a verdict for the plaintiff, and assessed the damages at $1800.
The defendant moved for a new trial on the grounds stated in the assignment of errors.
This motion was overruled, judgment entered, and defendant appealed.
The errors assigned are:
The court erred in overruling the motion for a now trial,
1st. Because the verdict is contrary to evidence.
2d. Because the verdict is contrary to the weight of evidence.
3d. Because the verdict is contrary to law.
4th. Because it is contrary to the instructions of the court.
There have been three trials of this cause — the first in 1861, resulting in a mistrial, the jury having failed to agree upon a verdict; the second in 1866, resulting in a verdict for the plaintiff, upon which a new trial was granted upon the same grounds upon which a new trial is now urged; and the third trial in March, 1868, in which a verdict and judgment was obtained for plaintiff, and upon the refusal to grant a new trial the case now comes before this court.
It is well suggested that where two juries have concurred in a verdict, it must be a strong case to warrant this court in granting a new trial, and it is said by the appellant that this is such a case. In Swinnerton against Marquis of Stafford, 3 Taunton, 231, the .court says: “ The jury, who are the competent judges, have again had the case before them, and have decided it. Even if, on nicely scrutinizing all the evidence, wo had a doubt whether the verdict was right, it could never be right for *512ns to make no weight of two verdicts of a jury, in order to take the chance of a third.” Each of the judges expressed themselves in similar language, and some of them say they would “nave been better satisfied if the verdict had been the other way., It seems, by the report of the case, as well as by the comment!; of the judges, that there was conflicting testimony before the jury, and the motion for a third trial was upon the ground that the verdict was against the weight of evidence. The ease of Barrett vs. Rogers, 7 Mass., 297, cited by the appellee, was one in which the motion was made for a new trial for the misdirection of the judge in matter of law, and it appear.'; that the testimony on the trial was contradictory. The court says: “ The ground of the result to which the jury came may not be very intelligible, but as two juries have concurred in it, we think on that account the verdict ought not to be disturbed, and more especially as no objection is made to it as being against evidence.” In Frost vs. Brown, 2 Bay., 133, a third trial was moved for, on the grounds that the finding of the jury was contrary to the limitation acts and the rules of evidence. The court was divided upon the question. Each party claimed title to lands in question, and the testimony left a doubt as to the locality of the land described in the defendant’s deeds, and also doubt as to the existence of a deed necessary to the plaintiff’s title. The judges who opposed the granting of a new trial, did so upon their view of the law and the quality of the evidence, and add, that they will not disturb the verdict for another reason, viz.: “A second trial has already been had, and two special juries have concurred in finding the same facts; I think we have no authority to interfere any further. For although I would never surrender a plain and certain rule of law to the caprice of a jury, or any number of juries, yet where the law is complicated with facts, so that the construction and application of it must depend on the finding of facts, two concurrent verdicts, even against the opinion of the judges, ought to he conclusive.”
Where the evidence is contradictory, making it the duty of a *513jury to decide upon the credibility of the witness, the court will not set aside a verdict ay against the weight of evidence, although it seems to preponderate against the finding of the jury. Talla. R. R. Co. vs. Macon, 8 Fla., 299; 2 Wend., 352; 3 Hill, 250; 2 Hill, 576. A new trial will be granted where the verdict was contrary to the evidence. _ Hart vs. Hosack, 1 Cai. Ii,. 25. And where there is evidence on both sides, if it appear that injustice has been done. Leroy vs. Sternburg, 1 Cai., 162. Where a jury on a second tidal find a verdict against th# decision of the court on the former motion for a new trial on a point of law, the court will grant a rule for a third trial. Silva vs. Low, 1 Johns. Cas., 336.
In Sanderson vs. Hagan, 7 Fla. 318, the court say it will very reluctantly interfere with the verdict of a jury as to the facts, yet where it is unsupported by the testimony in the case, or contrary to it, its duty is imperativo to sot it aside and grant a now trial.
If, in the case at bar, it appears that the verdict was founded upon a consideration of conflicting testimony as to the material facts, we cannot disturb it, even though we might have come to a different conclusion. If it was found upon testimony which did not tend to prove a material fact, necessary to entitle the plaintiff to recover, and upon an entire misapplication of the facts, or an entire misapprehension of the charge of the court, such charge being unexceptionable, we must in such case order a new trial, even though the same error may have been committed by two or more juries upon the same state of facts.
The testimony is not conflicting as to any material fact. It shows that the slave Jackson was hired by defendant to labor in the capacity of a fireman on the railroad, and to attend strictly to the duties of a fireman, expressly providing that he should not -be employed in the work of coupling and uncoupling of cars, nor to attend to any work like shifting cars, “ particularly things of that character,” because of the dangers attending that kind of employment; and it was to avoid such danger that the *514condition was made. The man had beenfor some time previously' employed as fireman and about railroad trains upon this road. Upon the arrival of a train at the end of the road, Jackson was ordered by the engineer to attach a rope to the “ tender,” (the other end of the rope being attached to the train upon a side track by another person,) for the purpose of moving the train a short distance. That being done, Jackson unloosed the rope from the tender, said “ All right, comeback,” and as the locomotive wa^starting on slowly, he hurriedly undertook to get back on the engine, his hand failed to seize tlie “ handle” securely, and he fell, the wheel passing over and crushing his foot, and this injury occasioned his death.
Edwads on Bailments, 320, says : “ The hirer of chattels for use must use ordinary diligence in taking care of them. * * Where the action is against the hirer for an injury alleged to have been sustained through his negligence, the onus probnndi is upon the bailor to show that the injury occurred through the defendant’s neglect. * * The degree of care demanded by the law is measured always by that diligence which, under the circumstances, a man of ordinary prudence and discretion would exercise in reference to the particular thing, were it his own. * * Where the plaintiff sets forth a special contract of hiring, as that a slave hired should not be employed in and about the water, he. must not only show an employment of the slave in and about the water, but that in such employment the injury or destruction of the slave took place. He must support his allegations by proof of the facts alleged. (Humph., 199.) Where a slave is hired for a specific purpose, the bailee is responsible for all damages arising from his employment in a different service, and for any loss occurring while the slave is so employed, though by inevitable accident. Evidence that the loss or injury occurred in a service different from that for which he was hired, is sufficient to sustain the action, without showing any want of diligence on the part of the bailee.”
In determining the question of the liability of the appellant *515upon the law and the facts, the following inquiries are suggested by the argument and brief of the appellee, viz. : “ 1. Whether the death of the slave Jaclcson was occasioned by the carelessness, negligence, or improper conduct of the appellant; 2. Whether Jackson was killed while in the performance of a duty ordered by the appellant; outside of his regular employment— a duty which he was not required to perform by the contract of hire.”
What evidence had the jury that the conduct of the appellant was careless, negligent, or improper, on account of which the man lost his life ?
The circumstances must be considered with reference to the occupation and the nature of the employment in which Jackson was engaged. He ivas hired by his master to labor in an occupation which is at all times attended with danger, and there was exacted a higher rate of wages on account of this danger. The appellee’s witness, Bowman, says that he regards it as part of the duty of a fireman to shut the cylinder cocks while the engine is going slowly, and to get upon the engine after it is started; but that the getting off and on the car or engine for the purpose of attaching them together by rope or otherwise, and cutting them loose, was entirely foreign to the work for which Jackson wras employed.
Witness Nash says: “ I can’t say he was to be confined to the engine; he was hired strictly to perform the duties of a fireman as understood between Bowman and myself — he was not to be sent to couple and uncouple cars.”
Now the evidence is that Jackson was ordered to attach the end of a rope to the “ tender.” If the injury had occurred “ in such employment,” and on account of the danger attending it, accordingto the doctrine in Edwards on Bailments, and the cases cited by him, which seem quite in point, there would be no question that the jury may have been warranted in finding this verdict. But there is no such evidence whatever. The Work had been done and the man was unharmed. After it was done he *516stood a short time looking toward the carpenter’s shop; he himself gave the word “ back” the engine, and as it started slowly, undertook to get upon the engine, and by not getting a firm hold of the handle his hand slipped and he fell, the engineer not seeing him until he was making the attempt to get on the engine. It then does not seem that there was “ carelessness, negligence, or improper conduct” on the part of the appellant which occasioned the injury, but rather an accident which was, so far as the proof goes, entirely owing to the carelessness of Jackson himself. He was not even ordered to get on the engine; it is proved that it was not necessary, for the engine had arrived at the end of its route. The dangers against which the con - tract provided were not present at the time, and were no more connected with the accident than if a day had intervened. Nor was there any more danger in his getting upon the engine on that occasion than there was in getting on after turning the cocks, a thing which all the witnesses on the subject agree was strictly within the duties of a fireman.
In the case'of the Talla, R. R. Co. vs. Macon, 8 Fla., the court say, quoting the views of “ intelligent courts “ 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 ; and that “ the wrongful act of the bailee renders Mm liable for all its natural and immediate consequences.” In Forsyth and Simpson vs. Perry, 5 Fla., 337, a slave was drowned, in attempting to jump on board a steamboat from another boat in obedience to the orders of the mate, the slave being a hand on the steamer, and the jury found that there was “ gross negligence.” The only important question in that case was, whether the mate or his employer was liable. The court, however, in Kelly vs. Wallace, 6 Fla., 690, commenting upon the case of F.orsyth and Simpson vs. Perry, say: “ It is difficult to conclude (in the absence of a full statement of the circumstances) that in the mere giving of such an order there was gross negli*517gence.” And commenting upon other cases, the court says, “ they decide that when a boy is hired for a special purpose ho undertakes the hazards of the employment; so does an engineer of a steamboat or a hand at a saw. • If either of them, without any order or misconduct of his superior, gets entangled in the machinery so as to lose his life, the loss may not fall on the person hiring.”
We thus see that in a case of this character, where the servant is hired to service in an employment in itself more or less dangerous, requiring much care on the part of the servant, and where without the exercise of caution and Intelligence by him the danger is constant, and where on account of the peculiar character of the employment, a price is exacted beyond the wages of ordinary labor, the extra risk being taken into account, the loss occurring on account of the carelessness or heedlessness of the servant, and without the fault of the hirer, the hirer is not liable. We conceive that this Is such a case ; that the slave Jackson was not injured in the act of performing an improper order, or while employed in an act not warranted by the contract of hiring ; that if he had lately been so engaged, the Injury did not occur in its performance nor in consequence thereof.
In our judgment, therefore, the verdict of the jury was contrary to law and to the evidence, and the judgment must be reversed and a new trial awarded.