There was no abuse of discretion in granting a first new trial in this case. Judgment affirmed.
The evidence for the defendant tended to show that the grade of the track at the place of the accident was about level, and there was a pretty good curve there; that conductors are not required to couple or uncouple cai’S, this dangerous 'duty being part of a brakeman’s business, and the conductor having to give signals to the engineer, nor does it amount to a custom for them to couple or uncouple; that sticks are furnished to use in doing this; that the conductor was expected to know the rules, etc. The plaintiff made a report of this injury to the company, answering the -questions propounded in a blank form furnished by the company for this purpose. In it he stated that the accident was caused by intaking slack of train to cut cars loose, and fingers got caught underneath pin. Then followed these questions and answers: “State how accident occurred, giving full particulars; if injured in coupling cars, was he using coupling-sticks? were signals given? by whom? by whom received; and were they obeyed? was engineer handling engine? Report any defect in equipment that tended to the accident. (1) Accident occurred by intaking the slack to uucouple ears; the pin was knocked up. I caught hold of pin, but before I could pull it out, the slack was taken up and caught fingers underneath the pin. (2) Injured uncoupling cars. (3) Signals were given. (4) By conductor. (5) Received by engineer, and were obeyed. (6) Engineer was handling engine. .(7) Eor some cause the pin would not come out when slack was given.” The defendant introduced the following of its rules in force at the time Kane was injured, and contained in the schedule, a copy of which he had: “Each employee is hereby warned that, while on the tracks or grounds of these companies, or in working with or being in any manner on or with the cars, engines, machinery or tools, he must examine for his own safety the condition of all machinery, tools, tracks, cars, engines, or whatever he may undertake to work upon or with, before he makes use of, or exposes himself on or with the same, so as to ascertain as far as he reasonably can their condition and soundness; and he is required promptly to report, either to the superin ten dent or to whoever may be his most accessible superior officer, any defect in any track, machinery, tools or property of these companies afiecting the safety of any one in using or operating upon or with the same. Great care must be exercised by persons coupling cars, inasmuch as the coupling apparatus of cars or of engines cannot be uniform in style, size or strength, is liable to be broken, and various causes render it dangerous to expose the hands, arms or persons of those engaged in coupling between them. Conductors must keep as many coupling-sticks or forks in their train equipment as they have train-hands. Jumping on or oft trains or engines in motion, getting between cars in motion to uncouple them, and all similar acts, are dangerous, in violation of duty, and are prohibited. Employees are warned that if they commit any of these acts, it will be at their own peril or risk. Conductors are required to be on duty at least thirty minutes before leaving time. They will inspect the condition of their trains and report to the master of transportation upon form No. T8. They will also be on the platform of the station as much as possible.” The newly discovered testimony was, that the track grade towards Jacksonville from the place of the injury, was upward instead of downward; that the statement in the testimony for the defendant, that the track there was about level, was based upon an observation without taking the grade by measurement, this having been done since the trial; and the defendant’s counsel concluded, from the allegation in the declaration that the train gave a sudden lurch or movement, that the plaintiff would attempt to prove that the engine imparted such movement, and so made no attempt to get evidence to show the grade of the track, not seeing how it could be material. Charlton & Mackall, for plaintiff. Chisholm, Erwin & duBignon, for defendant.