
    *Randolph v. Hill.
    March. 1836,
    Richmond.
    (Absent Brooke, J.)
    Verdict Refusal to Set Aside as Contrary to Evidence —Case at Bar. — Plaintiff hires a slave to defendant to work in his coal pits, and the slave being- one evening- at work in one of the pits with other labourers, they are all sickened by foul air, and are drawn out; next morning the overseer of the pits sends down the foreman, a trustworthy and experienced slave, to examine with a lamp and ascertain whether the foul air has left the pit (which is the usual course of examination in such cases) and the foreman reports that the l'oul air is gone; the labourers, ten in number, again descend. are again sickened by foul air, and plaintiff's slave is killed by it before he can be drawn out of the pit, which has a single shaft. 70 feet deep, and admitting only one bucket, capable ol raising but one or at most two persons at a time; In action on the case to recover damages lor the loss of the slave, the jury, on these facts proved by defendant's overseer of the pits, who is plaintiff's sole witness, find a verdict for plaintiff, and the court, overruling defendant's motion to set ■ aside the verdict as contrary to evidence, give judgment thereon for the plaintiff — And judgment affirmed, by the equal division of this court.
    This was an action on the case brought by Hill against Randolph, in the circuit court of Chesterfield. The declaration alleged, that Hill hired a negro man slave to Randolph for one year, to work in Randolph’s coal pits in Chesterfield; and that Randolph was bound to keep all his machinery, utensils and pits, in proper order and repair, to work his pits in a collier-like manner, and to use due and ordinary diligence to prevent accident and hurt to the labourers employed therein, and to Hill’s slave among the rest; yet Randolph, regardless of his duty in that behalf, and careless of the safety of Hill’s slave, negligently suffered and directed him to descend into the pits when there was impure and noxious air therein, whereby the life of the slave was put in great jeopardy ; and, well knowing the pits to *be filled with impure and noxious air, caused and ordered the slave to be kept at work in the pits, until by the impure and noxious air therein he was killed. Plea, not guilty. Trial, and verdict for Hill for 400 dollars.
    Randolph moved the court for a new trial, on the ground that the verdict was contrary to evidence. The court overruled the motion. Randolph excepted; and the court certified the facts proved at the trial, as follows—
    It was proved by the testimony of two of Randolph’s overseers at his coal pits, witnesses on the part of Hill — That the slave was hired by Hill to Randolph, to work in the pits, for one year. That it was discovered one evening, that there was foul air in the pit where this slave of Hill worked, and he and all the other labourers were therefore drawn out; and they were all, and particularly Hill’s slave, told by one of the overseers present (who was one of the witnesses), not to stay in the pits, when they discovered foul air, long enough to be made sick by it. That, the next morning, the overseer superintending that pit (who was one of the witnesses), supposing that the foul air in the pit on the preceding evening, had been caused by a rain which then fell, and that, the weather being now clear, the foul air had probably left the pit, sent down one of the negro labourers at the pit (who, it seems, was a slave belonging to Randolph) with a lamp, to examine the condition thereof, and to ascertain whether the foul air was gone, so that the labourers could be safely sent down; which was the usual course in such cases, though the overseers themselves sometimes went down. That the person sent down was the foreman, and one of the most experienced labourers at the pits, perfectly competent to make such examination, and worthy of full confidence. That the foreman reported to the overseer, that the foul air was gone, and that the labourers might go *down with safety. That the overseer, placing as much confidence in that report as he would have had in a personal inspection, and apprehending no danger, sent the labourers down, ten in number, including Hill’s slave and two of Randolph’s own, none of whom were unwilling to go down ; but after working there about half an hour, they found that there ivas foul air in the pit, and became sick, some more and some less, and were drawn out as fast as it could be done, one or at most two at a time: no preference was given to Randolph’s own slaves, one of whom was the last drawn up, sending before him the body of Hill’s slave, who had fallen into some water in the pit, about eighteen inches deep: he appeared to have been drowned, and could not be revived : all the other labourers were made sick by the foul air, but none dangerously. That there was foul air frequently in the coal pits; which was sometimos caused or driven down by rain, and after the rain, soon disappeared. That the shaft at this particular pit was about seventy feet deep, and a single shaft, which would admit of but one bucket to ascend at a time. That there were several apartments in the pit; the labourers did not all work in any one of' them at the same time; and, occasionally, foul air was found in one and not in the others. That such foul air would and occasionally did cause death. And that much greater hire was paid for slaves to work in coal pits, than for ordinary service, the difference being about twenty-five or thirty per cent. And these being all the facts proved in the cause, the court was of opinion, that the jury might lawfully infer from the evidence as delivered by the witnesses, —who might be expected to feel a desire to place their own conduct in the most favourable light, — that the examination made of the condition of the pits by Randolph’s slave, was not so careful a one as ought to have been made by a prudent and discreet man, before he exposed so many slaves, most of them belonging *to others, to such danger as was proved to have existed; and as the jury had deduced that inference from the facts proved, the court, thinking they had properly done so, overruled the motion for a new trial.
    Judgment was then given for Hill upon the verdict; to which this court, upon Randolph’s petition, allowed him a supersedeas.
    
      Taylor and Johnson, for the plaintiff in error,
    admitted, that on an appeal from the judgment overruling a motion to set aside a verdict and direct a new trial, on the ground of the verdict being against evidence, it must appear to the appellate court, that the verdict was plainly against evidence. But, they said, this verdict was plainly so. There was no conflict in the testimony; it all came from the plaintiff’s own witnesses; he could not have impeached their credit, and if he could, nothing was offered to discredit them. Neither the jury, nor the court, had a right to suppose that the facts were different, in any respect, from what the testimony represented them to be — that the witnesses concealed any fact, or gave a false colour to those they stated, in order to place their own conduct in a favourable light — in effect, that they did not tell the whole truth. Yet it was only upon that supposition, that this verdict could be approved; and this, in truth, was distinctly admitted by the circuit court itself. The verdict was nót warranted by the evidence, but by facts inferred to exist, which were not proved, and not reconcile-able with the facts that were proved. Hill had hired his slave to Randolph to work in his coal pits: there were dangers incident to such labour, from which ordinary labour was exempt; dangers arising from accidents which no human care could always avoid, and among others from foul and noxious air, with which the pits were occasionally infested ; dangers not peculiar to Randolph’s coal pits, but common to all coal pits, not peculiar to slave ^labourers, but common to all labourers in coal pits, black or white, bond or free; dangers frequently incident to european coal pits, managed with the utmost skill and care, and having the most perfect fixtures and machinery to draw the labourers to the open air; dangers so well known, that labourers, or the owners of labourers, employed there, received higher wages, as a premium, in truth, for the risque incurred, upon the principle on which higher wages were always given for labour in a gunpowder mill. Hill had been paid for the risque to which his loss was owing. To impute the loss to the want of due care in Randolph or (which was the same thing) in his overseer, was to discredit the testimony, without the least ground for doing so. The circuit court thought that the jury was warranted in inferring from the evidence, that the examination made by Randolph’s slave, to ascertain whether there was foul air remaining in the pits, was not so careful a one as ought to have been made by a prudent and discreet man, before he ■ exposed the lives of the labourers, most of whom were the slaves of others, to such a danger. But the person who made the examination was the foreman, and the most experienced labourer at the pits; and he himself was to incur the danger of the foul air, and would, therefore, be very careful to ascertain its existence or absence. There was not the least reason to believe, that a negro man, experienced in the business, who must have often seen foul air in the pits, since it was frequently found in them, was not as capable of ascertaining its existence, as the overseer himself would or could have been. Besides, this was the usual course in such cases, though the overseer sometimes descended into the pit himself. The usual diligence and care, therefore, was employed to avoid the danger; and Randolph was only bound to bestow ordinary care and diligence. Usual care and diligence was proved by the plaintiff’s own witnesses at the trial, but the *court thought that the jury was well warranted to discredit the testimony in that particular. If this was proper, they said, no verdict ever could be set aside for being contrary to evidence.
    Scott, contra,
    said, that this verdict could not be disturbed, without wholly disregarding the principle stated by judge Roane in Ross v. Overton, 3 Call 319, and so often since approved and acted on by this court. The whole amount of the opinion of the circuit court, which had been so much complained of, was that the jury, considering the situation of the witnesses, were warranted to take their testimony most strongly for the plaintiff, and against the natural bias of their feelings: and this was true and just. An owner of coal mines ought not to have trusted an ignorant negro, however long he might have been accustomed to work in them, to ascertain whether foul and noxious air had got into them: it was his duty to have experienced colliers to superintend his pits, to impose the duty upon them to make the examination proper in such cases, and to furnish them the proper means to make such examination. Justice as well as humanity required this at his hands. But they required more: as, in spite of all human care and skill, foul air might occasionally collect in all coal pits, it was utterly unsafe to rely on a single bucket, in which only one or at most two persons could be brought up at a time, to draw up labourers from a pit seventy feet deep. If there had been two buckets at this pit, Hill’s slave would probably have been rescued from death. This alone was sufficient to justify this verdict’.
    Johnson replied,
    that it was remarkable, that the circuit court did not give the least weight to the circumstance of there being but a single shaft at this coal pit, and a single bucket worked in it. And the reason was plain enough ; it was not shewn, that the circumstance was at all unusual in the working of coal pits, at least, our coal pits, so as to afford an inference of any want *of the usual care and diligence to provide against the danger.
   BROCKENBROUGH, J.

In this case, the court not only certified the.facts that were proved at the trial, but also the persons by whom they were proved. They were the overseers employed by the defendant in superintending the labourers at his coal pits. If there was any negligence in the case, they were the persons who were guilty of it. The plaintiff was, however, compelled to make them witnesses, or to lose his testimony altogether, since the labourers were slaves and not competent to give evidence. I agree with the judge of the circuit court, that it was perfectly natural that those witnesses should wish to place their own conduct in the most favourable point of view. They might not have been at all conscious that they were guilty of any neglect, and yet the facts proved by themselves might have been sufficient to convince a jury, composed of disinterested and intelligent men, that they were guilty of gross neglect. The jury might have been satisfied, that a single examination, even by a careful and trustworthy person, with a single lamp, to ascertain whether it would be extinguished by mephitic gas in a pit seventy feet deep, was not sufficient; that where human life was to be risked, repeated and successive experiments should have been made, with torches or lamps, at regular intervals, before the lungs of men should be required to inhale that air; or that other more complete experiments should have been made to ascertain the condition of that subterranean abode; that an hour or two would not be unprofilably thrown away, in determining the condition of the pit. The jurjr might reasonably have concluded, that "to guard against the danger of mephitic gas, it was the duty of the defendant to provide a larger bucket and a stronger rope, to enable more than one or two persons, at a time, to ascend *the shaft, and thus escape from death. The jury might fairly have inferred, from the evidence given, and allowing it full credence, that the defendant and his agents were guilty of the negligence charged. They were the proper judges of this matter; the judge who tried the cause thought they had decided rightly; and I am sure I can see no ground on which to say that they were wrong. I am for affirming the judgment.

CARR, J.

The principles that govern cases of this kind (of which we have had several lately) are well settled. It is agreed, on all hands, that when a court is applied to for a new trial because the verdict is contrary to evidence, “the court ought to grant it, only in case of a plain deviation, and not in a doubtful one, merely because the judge, if on the jury, would have given a' different verdict; since that would be to assume the province of the jury, whom the law has appointed the triers.” The difficulty lies in applying this law to the facts of the different cases brought before us. We ought, J think, to exercise the power given us with a jealous caution of ourselves; for if we do not agree exactly with the jury, we are naturally too apt to overlook the distinction between a plain and a doubtful deviation; and thus to invade the province of the jury. The facts before us present to my mind one of those doubtful cases. The defendant having hired the slave to work at his coal pits, which are known to be subject occasionally to the visitation of this foul air, and having given the additional hire which is laid on to meet: this risk, ought not to be charged with the loss of the slave, unless he was in some default. If he has been negligent in any thing, it was either in sending the hands into the pits without a sufficient examination, or in failing to provide sufficient means of escape in the moment of danger. The hands had all been more or less sickened the evening before by foul air in the pit, and had been *taken out. The next morning they were sent down again, after an examination by a single person, and that person a negro slave, but experienced and confidential: was this taking sufficient precaution, where so many human lives depended on the issue? Again: the pit was seventy feet deep, and there was but one shaft, allowing but one bucket to pass up and down: was this providing sufficient means of escape? These, I confess, are doubtful points with me. Perhaps they might not be so, if I were better acquainted with the working of coal pits, the nature of this mephitic air, the customs and habits of the business, and the precautions commonly used; but of these I am wholly ignorant. Here are twelve men, most of them probably citizens of the county, some perhaps from the neighbourhood of these pits, and well acquainted with all these facts; every one of them, I apprehend, a better judge of these matters than myself. They are, too, the appropriate triers of facts. With the witnesses before them, and no bias to mislead their judgments, they have found for the plaintiff. And the judge who heard the whole case has refused a new trial. Shall I undertake to say, that this is a finding against the evidence, so gross and palpable as to justify me in setting all aside, and sending the parties back? I certainly cannot. Let me not be misunderstood: I do not mean to say, that the defendant has actually been negligent; that he has deserved the verdict; but that it is one of those cases where the jury’s verdict is decisive with me; for I am free to declare that if, on the same facts, the case had come up with a verdict for the defendant, I should, as at present advised, have refused a new trial. I am for affirming the judgment.

TUCKER, P.

I am of opinion, that the verdict of the jury, upon the facts appearing before them, was clearly wrong; and unless it be conceded, that a court is never *to grant a new trial in a case which is peculiarly appropriate for the decision of the jury, a new trial ought to be granted in this. But, whatever the nature of the case, if the jury have plainly deviated from the conclusion to which the facts proved ought to have led them, the court ought to exercise its superintending power, by granting a now trial. Such I conceive to have been the case here. The verdict is altogether unsustained by the facts, and the court ought to have granted a new trial. In correcting this error, this court would not take upon itself to decide upon the weight of evidence; the facts proved, and not the evidence, having been certified by the circuit court. I have therefore no difficulty in saying, that the judgment should be reversed, and a new trial awarded.

CABELL, J.

I concur in the opinion of the president.

The judges of this court being equally divided in opinion, — judgment of the circuit court affirmed.  