Memphis &. Charleston R. R. v. Whitfield

Takbell, J.:

This action was instituted in the circuit court of Tishomingo county, by F. E. Whitfield, to recover damages of the Memphis cfe Charleston R. R. Co., as common carriers, for injuries received by the plaintiff as a passenger on the cars of the company.

*481 The declaration is in the usual form in trespass, on the case for injuries to the person, through the wrongful acts of the company’s servants.

Defendants pleaded the general issue. A trial resulted in a verdict for plaintiff, of $2,000, which verdict, on' motion,. was set aside. On the second trial the jury increased their finding to $4,500. A motion to set aside this verdict'was' overruled. No questions were raised upon the testimony. . The motion for a third, trial was on the following grounds: 1st. The ‘verdict was contrary to law; 2d. It was contrary to the evidence; 3d. It was contrary to the instructions of the ■ court; 4th. The instructions given for plaintiff were improper; 5th. Instructions asked by defendants were improperly refused ; 6th. The verdict is excessive in damages.

The case having been brought to this court, a reversal of the judgment is asked for the causes stated in the motion for a new trial; for the further reasons that the court refused to give the 2d, 3d, 4th, 5th, and 8th instructions asked by defendants ; because their motion for another trial was denied;. and because the court erred in giving the 6th instruction for plaintiff.

Counsel on both sides have referred to numerous authorities, all of which, with others, we have carefully examined.

Except the 6th, the instructions for the plaintiff in the court below, and those given for the defendants therein, are unobjectionable. The plaintiff (Whitfield) purchased a ticket at Corinth for Ohewalla, with which he entered a car for the reception of passengers, attached to a freight train. His ticket was taken up by the conductor. Nearing Ohewalla, the signal to stop was given, but the train passed several hundred yards beyond the depot, stopping at an unusual place, which was low and wet. Whitfield demanded that the train should be backed to the platform. The conductor gave the signal to back, but the engineer made no effort to obey. The conductor then informed Mr. Whitfield, and testified on the trial, that, owing to the condition of the track and grade, the train could not be backed, and that Mr. Whitfield *482 must get out there. No special circumstances of insult, oppression, or tyranny,. appear in the reported testimony,, but the conductor stood by and saw Mr. Whitfield alight,, without any offer to aid Mm in so doing, or by warning or advice. Nothing Was said about the steps underneath the Car until after the accident, and it does' not appear that Mr, Whitfield had any knowledge of them. To use the steps,, •involved his getting out backwards, with his face to the car, and his hack to the landing place on the ground. Seating: himself upon the floor of the car, with his hands hold of an iron rod extending along the side of the car, hé swung himself out upon the ground, wet, icy, and slippery from several days previous snows. In j moping, he dislocated and seriously injured his knee.

Whether the engineer and conductor were competent, careful and prudent men; whether the engine was a sound, strong and proper one for the train, and condition of the road; whether, in view of the previous storms, the train was overloaded, and whether the necessary skill and foresight had been exercised, seem not to have been noted on the trial. It simply appears that the train passed the depot several hundred yards; the plaintiff demanded that the train be backed; it was not done, nor was any effort made to do so, and the plaintiff was required to get out at an unfisual place, where there was no platform, without aid, advice, suggestion or warning. '

The facts herein being brief and simple, and having ¡been determined by a jury of the county, we should be, independent of the question of damages under the sixth instruction for plaintiff, disinclined to look further into this case. The question, however, presented by the sixth instruction given for plaintiff, in connection with damages allowed, and the fourth refused for the defendants, are important, and require examination. The sixth instruction for plaintiff is as follows : “ In all actions of loss against common carriers, the jury, in their discretion, are to weigh all the circumstances of the case; and are authorized to find exemplary damages, *483 when they consider the personal wrong and injury of such a character as in their judgment, to call for the imposition of exemplary damages.”

The instructions asked for the defendants, and refused by the court, except the fourth, were but repetitions, in other language, of those given, and were, therefore, properly refused in the discretion of the court. The fourth instruction referred to, is as follows: “Even though the jury believe that the plaintiff was wholly without fault in the producing the injury complained of, and used all proper care to prevent the accident or injury, yet, if from the evidence, the jury believe that there was no recklessness, wantonness, wilfulness, or malice, nor malicious intent, upon the part of the defendants or their agents, the jury cannot find exemplary damages.”

- The points for adjudication as we understand this case, are, first, instructions in this class of cases, invoking the rights, obligations and duties of the respective parties ; and second, damages when they should be compensatory only, embracing the subjects of compensatory allowance; and when punitory damages may be allowed.

Up to the point of stopping the train beyond the Chewalla depot, the responsibility was wholly with the company and its agents. There was up to that time, no fault on the part of the plaintiff in the action, nor did he contribute in any way to the neglect of the railroad company, in running past the station. In thus passing the platform, and requiring the passenger to alight without assistance, in an unusual place, and without a safe spot to alight upon, the company was prima fwola guilty of a neglect which it was the province of the jury to characterise from the evidence, whether it was justifiable or excusable; whether unavoidable or voidable ; and whether all the circumstances culminating in the stopping the train where it did stop, and tire refusal or failure to back on demand to the platform, were mitigating or aggravating, were facts for the consideration of the jury. Stopping the train at an unusual place, ^rendered the company *484 presumptively in the wrong to that extent, and the onus of explaining this neglect was thrown upon the defendants. Sherman & Redfield on Neg., §§ 12,280 ; Sedgwick on Dam., 565; Curtis v. R. & S. R. R. Co., 29 Barb., 285 ; Angel § 569; 2 Redfield’s Law of Railways, § 176.

The next branch of this case in order of occurrence, embraces the circumstances attending the exit of Whitfield from the cars. He demanded that the train should be backed to the platform. Though the signal to back, was given, no effort was made by the engineer to do so, and the conductor replied that the train could not be backed. The choice was thus submitted to the plaintiff of getting off the train at an unusual place, or of going on to the next station; a choice which the company had no right, prima faoie, to impose upon a passenger. He was required to get out then and there, and was allowed to do so, without aid, suggestion, or warning— the conductor standing silently by his side while he was alighting. A brakesman ran to his side, after his injury, but it does not appear that he did so at the suggestion of the conductor, or that the latter so much as expressed sympathy for his sufferings.

Not only were the reasons forrunning past the station, the subject of inquiry by the jury, but also, the reason why the train was not backed to the platform, on demand, and all the facts and circumstances of the exit of the plaintiff from the cars of defendants. Was the refusal to back the train capricious and willful ? Was the engineer competent ? Was the engine sufficient ? Was the train overloaded? Had judg. ment, skill, and prudence been exercised ? If there was neglect in any of these respects, on the part of the company or its servants, what was the degree or character of that neglect? Were the means which .defendants, had provided for alighting from their cars ample and sufficient, under the circumstances, to insure the safe descent ©f plaintiff ? Wa.s the conduct .of the conductor, while the plaintiff was getting out of the cars, such as the circumstances required of him ? Did the plaintiff, in alighting, exercise ordinary care and prudence to avoid accidents or injuries to himself %

*485 These were some of the questions, under suitable instructions from the court, proper for the consideration of the jury. It is true that parties to contributory or mutual injuries cannot recover for the damages sustained. 42 Penn., 493 ; Pierce, 272-475; S. & R. 318; Sedgwick, 103, 539; 1 Red., 545, et seq.; but the negligence of the respective parties, first, as to the company in running beyond the station, and then as to the conduct of the company’s servants, during the exit of plaintiff from the cars ; and secondly, as to the conduct of the plaintiff, himseif, in his mode of alighting; because the plaintiff cannot recover for damages which he might have avoided by the exercise of ordinary care and diligence, were the turning points in the case. 41 Miss., 131 ; 2 Am. R. Cases, 378; ib., 399.

Railroad companies, say the court, in R. R. Co. v. Aspell, 23 Penn., 149 , “ must carry the passengers to their respective places of destination, and set them down safely, if human care and foresight can do it.” Vide, also, Angel, 509, § 541, and §§ 521 to 671. Passenger carriers, says Ch. J. Shaw, in Farwell v. B. & W. R. R. Co., 4 Met., 49 , “ are held to the strictest responsibility for care, vigilance, and skill, on the part of themselves and all persons employed by them, and they are paid accordingly.” The obligation of railroad companies to provide platforms or safe places of deposit for passengers to alight on, at their stations, and to deliver passengers on such platforms or * safe places of deposit, is well settled. Sher. & R., on Negligence, §§ 275-277.

The carrier must use due care, not only in conveying his passengers upon the journey, but in all preliminary matters, such as their reception into tlm vehicle, and their accommodation while waiting for it. ' Sher. & R., § 275.

The obligation of a carrier to assist passengers in getting on and off, depends largely upon the nature of his vehicle, the facility with which access may be had without assistance and similar circumstances. Sher. & R., § 278; Warren v. F. R. R. Co.; 8 Allen, 227 .

A railway company stopping its train for passengers at a *486 place so steep that they could not easily climb upon the train, would be bound to assist them to do so. S. & R., § 278; and most assuredly, not less- so to aid a passenger in alighting, under similar circumstances. The conductor is bound, upon the request of any passenger, to move the train backward or forward, so as to enable the passenger to step upon the platform. Sher. & Red., § 277.

The general rule as to all persons professing to exercise any trade or employment for all persons indifferently, is, that they are bound for k due application on the part of their servants, of the necessary attention, art., and skill. Angel § 540.

Although the record presents to us a case wherein the Railroad company is presumptively guilty of negligence in running past the station — in stopping at an unusual place, and in permitting a passenger to alight without assistance, under the circumstances detailed in the record; yet, if the plaintiff, in getting out, failed to observe ordinary care and prudence, in consequence of which he received the injury, he is not entitled to recover, unless the negligence of defendants was such that the accident happened notwithstanding the care and prudence of the plaintiff. Such is the doctrine of the authorities. Angel 559-561; 2 Redfield, §177, p. 191; Pierce, 475; Sedgwick, 539, and cases therein cited; S. & R., 318, 320; Heil v. Glanding, 42 Penn., 493 ; 41 Miss., 131 .

The conduct of both plaintiff and defendants on that occasion — whether the latter discharged all their obligations to their passenger, or were guilty of neglect — and the character or degree of that neglect, and, also, whether the passenger acted with ordinary prudence and care, should have been distinctly, as they were substantially, submitted to the consideration of the jury who have virtually passed upon these questions. Vide the E. & C. R. R. Co. v. Lowdermilk, 15 Ind. 120 .

Siner v. G. W. R. R. Co. [Law Reports for June 1, 1868? part vi.], 3 Exch., 150, is distinguishable from the case at bar in several respects. That was an excursion train, and *487 too long for the platform. No directions were given-to passengers to alight, nor was any demand made to back the cars. The passengers in the cars which overshot the platform, with-<rat demanding the train, to be backed, voluntarily alighted, and in doing so the plaintiff was injured. The court of Exch. [held, that there was no evidence for the jury of negligence in -defendants, and that the accident was entirely the result of the plaintiff’s own voluntary acts.

So, also, is the E. & C. R. R. Co. v. Duncan, 28 Ind., 442 , wherein the plaintiff leaped from the cars, though warned that she was leaping in a dangerous place, and the plaintiff, herself, testified that she voluntarily made what she regarded as a dangerous leap. It was on the 4th of July ; there was a large crowd; a long excursion train, and much haste and excitement. Provision had been made for safe descent upon one side of the car in which plaintiff was, but without observing it, plaintiff jumped from the opposite side, alighting upon a cross-tie. Held, she was not entitled to recover.

In Jeffersonville R. R. Co. v. Hendricks, 26 Ind., 228 , the plaintiff voluntarily _ leaped from the cars, while in motion, not to escape apprehended danger, but to avoid being carried further. So, in Penn. R. R. Co. v. Aspell, 23 Penn., 147 , the courts of last resort in those cases held that the plaintiff could not recover.

In Foy v. London, Brighton et al., Railroad Co. (18 C. B. (N. S.) 225), the train being longer than the platform, the plaintiff, a lady passenger, jumped from the rear car, on the advice of a porter. The court refused to Set aside a verdict in her favor, for injuries thus received. Vide, also, S. & R., § 281, 283; Angel, § 547,*548.

Our conclusion upon this branch of the case, is, that the {negligence of the respective parties involved questions of fact, which were rightfully for the consideration of the jury. Where the gist of the action is negligence, the question whether the defendant has been- negligent so as to subject him to liability, and whether tbe plaintiff has been negligent so as to exempt the defendant from liability, is one of fact *488 for the jury under the instructions of the court as to the principles of law applicable thereto. Pierce, 282, and cases cited in note 2.

We accept the findings of the jury upon the questions of negligence as conclusive.

Passing to the subject of damages, we remark that we are unable' to learn from the record, whether the jury intended to find compensatory damages only, or-whether they con-, sidered the amount punitive in its character. The subject of damages, for injuries to personal property, was very fully investigated in Whitfield v. Whitfield, 40 Miss., 352 , and the following rules were stated: “1st. That in actions for taking and detaining personal property, where no question of fraud, malice, oppression or willful wrong, either in the taking or detention, intervenes, the measure of damages is the value of the property at the time of the taking, or conversion, or illegal detention, with interest thereon at the time of trial, and this is the rule of law to be decided by the court. 2d. That where the trespass, detention, or conversion is attended by circumstances of malice, fraud, oppression, or willful wrong, the law abandons the rule of compensation in a legal sense, and the measure of damages becomes a matter for the consideration of the jury, guided by the evidence before them. ”

Based upon the same philosophy, by the same reasoning, from precisely the same motives, and for like purposes, analogous rules have obtained as to injuries to the person, modified somewhat in their application, particularly to passenger carriers by steam. As in the case of injuries to personal property, there are two general divisions or classes of damages for injuries to the person: 1st. Wherein compensatory damages only are recoverable, and the measure of damages or subjects of compensation are governed by established rules; and 2d. Wherein the rule of law is abandoned,. and the jury may indulge- in sentiment and feeling, or in other words, may award what are denominated exemplary, vindictive, or punitive damages, and sometimes “ smart money. ”

Under the first division above, it may be affirmed, as a *489 general rule, that “ the passenger who has been injured by the negligence of the company’s servants, is entitled to full compensation for his injury. ” Pierce, p. 493, and cases.cited.

Under the second, punitive damages may be allowed where fraud, malice, gross,negligence, oppression, insult, rudeness, caprice, willfulness, or other causes of aggravation, mingle m the controversy, and are proven to the satisfaction of the jury, and in their judgment such damages ought to be awarded. Sedgwick, Angel, Pierce, Redfield, Sherman & Redfield.

Primarily, the most inconsiderate departure from the important duties imposed upon passenger carriers, will render them liable for the consequences. Angel, 539, § 568.

Again, common carriers are bound to the utmost care and skill in the performance of their duty. They are bound to extraordinary care, and liable for slight neglect. /

The danger to the public which may proceed even from slight faults, unskilfullness, or negligence of passenger carriers or their servants, have induced the courts to bind the rule of the contract, looatis operis, much tighter than they could be insisted for on the ordinary principles of that contract. Pierce, 469, et seq. Angel, 539.

If the engineer on a railroad, is under any circumstances guilty of misconduct, rashness of negligence, the proprietors will be responsible for any injury resulting therefrom. Angel § 541, and cases.

And the same rule holds good as to the conductor, as of other servants of the company.

Two questions growing out of this subject of damages have given rise to discussion, and somewhat of conflict: 1st. The proper subjects, or causes of allowance of compensation, in cases of purely compensatory damages; and, 2d. The true definition of gross negligence. The differences upon these subjects have crept into some of the cases, even in our own state, and by their use by counsel on the trial, they help to invest the case under consideration with importance. We shall refer to the first of these directly. As to the second, *490 it has not only defied definition to the satisfaction even of the most learned of the profession, much less of the mass of those who sit on juries — but it has called forth in judicial decisions, grave doubts of the wisdom of the divisions of negligence into degrees, or grades, as slight, ordinary and gross. The authorities illustrate the difficulty of reducing the elements of gross negligence to a fixed and definite rule, and its definition will doubtless remain, as it has been, a puzzle, and hence, much discretion must be confided to the jury. Pierce, 476-9; Story on Bailment, §§ 17, 23, 571; E. & C. R. Co. v. Lowdermilk, 15 (Ind.), 120; 2 Kent, 750, (11th ed.,) 1867; 2 Redfield, 201, 220; 1 ib., 547-8; Sedgwick, 35, 36, 98, 521, 545; Sher. & Red., 653, § 600; 648, § 597; 646, § 594.

Indeed, these distinctions are directly dissented from in steamboat New World v. King, 16 How., 469 , and it is asserted that the English courts seem finally to have cometo the definite conclusion, that there is no difference between negligence, and gross negligence; the latter being nothing more than the former with a vituperative epithet. 2 Reel., 201.

Lord Denman, says : “ Between willful mischief and gross negligence, the boundary line is hard to trace — I should rather say, impossible. The law runs them into each other, considering such a degree of negligence as some proof of malice.”

Reference to these conflicts of views on questions of vital importance, serves to enforce the practical necessity of greater care on the part of nisi prius judges in stating the rules of law applicable to each case clearly and fully to the jury.

The leading adjudications in Mississippi, in this class of cases, are V. & J. R. R. Co. v. Patton, 31 Miss., 156 ; Heirn v. McCaughn, 32 ib., 1; N. O., J. & G. N. R. R. Co. v. Hurst, 36 ib., 666; same v. Albritton, 38 ib., 243; S. R. R. Co. v. Kendrix et ux, 40 ib., 375; N. O., J. & G. N. R. R. Co. v. Statham 42 ib., 607. In Heirn v. McCaughn, the deliberate and intentional neglect of a public duty was held sufficient to sustain the verdict. In the case of Hurst, the conduct of the conductor, contended to have been oppressive, willful and insult *491 ing, in connection with the neglect of a public duty, in running past a platform, and requiring a passenger to get out of the cars at an unusual place, without personal injury, was the basis of a punitory verdict. In the case of Albritton, the doctrine was very correctly stated to be, that the company is liable for all actual and consequential damages proved; and for exemplary damages, at the discretion of the jury; provided, that the testimony in the cause shows that the plaintiff received a bodily injury, and that the injury was caused by the gross negligence or wanton and willful misconduct of the engineer of defendants.”

We do not understand the rule to be stated differently in the case of the S. R. R. Co. v. Kendrix et ux, 40 Miss., 375. Most certainly, a new rule is not announced, nor is it declared that previous decisions are thereby overruled.

Referring to Sedgwick on Damages, the .learned judge who delivered the opinion in N. O., J. & G. N. R. R. Co. v. Statham, 42 Miss., 607 , affirms that [“ to warrant a jury in finding a verdict for' exemplary or punitive damages, either malice, violence, fraud, or oppression must be shown to have mingled in the acts complained of.”

The authority referred to by him, thus states the rule more fully than the learned Judge has quoted': “Whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy, the law, instead of adhering to the system, or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages; in other words, blends together the interest of society and of the aggrieved individual, and gives damages, not only to recompense the sufferer, but to punish the offender.” This doctrine, though earnestly controverted by Prof. Greenleaf,is, however, generally recognized by the authorities. Sedgwick, 532; 1 Red., 552.

V. & J. R. R. Co. v. Patton, 31 Miss., 199 , was an action for killing stock The court say: “ And it is immaterial whether the jury thought there was gross neglect or willful *492 mischief. The rules above stated, apply, equally to either state of the case, and would warrant the jury in finding exemplary damages, if the circumstances of neglect or aggravation tended to justify it,, and they thought fit to award it.1’ And further, that “ upon the same principle, the numerous cases, whether of gross negligence or wanton wrong, have proceeded, in which exemplary damages have been awarded; for it matters little to a party injured whether the wrong be done with a malicious intent or by gross violation or neglect of duty.”

In N. O., J. & G. N. R. R. Co. v. Bailey, 40 Miss., 406 , “ violence and oppression ” were made the basis of punitive damages, and an instruction given to the jury, on the trial, that “any negligence ” by railroad companies acting “ by the dangerous and powerful agency of steam,” well deserved “ the epithet of gross,” was approved on error. Vide, 14 How., 468 ; Pierce, 481. The court described the case of Hurst, as one wherein there was “ not only a breach of contract and violation of a public duty, but a willful and forcible wrong.” In that case, the court said of the case of Hains v. McOaiighn, that “it was conclusive of the right of the jury, in such cases, to protect the public by punitive damages against the negligence, folly, and wickedness which might otherwise convert these great public blessings into the most dangerous nuisances.”

In the case of the S. R. R. & Co. v. Kendrix, 38 Miss., the court say of one of the instructions: “ It should also have contained terms of qualification, that vindictive damages might be found, if in the judgment of the jury, the facts shown in evidence, rendered it proper to do so.”

Again, “ It is not every failure to discharge all the duties imposed by the nature of the office of carrier, that will constitute gross and willful misconduct, for which punishment may be inflicted in damages.” And, “ there may be cases of failure to do everything incumbent on'them, which, under the special circumstances, might be partially excusable, and would, clearly, not show gross and willful misconduct, in fact, or which from the slight and immaterial nature of the *493 wrong resulting’from them, would not justify punitive damages.” Again, “ a neglect of duty, clearly not attended with any circumstances of insult, of aggravation of feelings, of injury to the person or his property, or of bodily or mental, suffering, would not justify vindictive damages, yet, if there be any evidence tending to show such circumstances, its weight and force rest peculiarly in the discretion of the jury,” etc.

And of another instruction, that, “ if taken to jfrold that when the carrier has been guilty of negligence, the plaintiff may recover special or exemplary damages, without any evidence tending to shorv circumstances of special injury or wrong, it was error,” etc.

In the case of the N. O., J. & G. N. R. R. Co. v. Statham, 42 Miss., 607 , no attempt was made to show that the plaintiff had suffered any injury, personally or pecuniarily. The damages were, therefore, punitive. The court stated as a rule, that, “ to warrant a jury in finding a verdict for exemplary damages, either malice, violence, fraud, or oppression must be shown to have mingled in the acts complained of;” and of the evidence that “ we are unable to perceive, after an ex-’ amination of the record, any act of the conductor toward the defendant in error, which savors of rudeness, violence, malice, fraud or oppression,” thus showing the difficulty of fixing a definite rule in these cases, as rudeness, may also, according to that case, constitute an element of special damages.'

Pierce on Am. R. L., 494, says, vindictive or exemplary damages are allowed by the current of authorities in case of intentional, or malicious injuries. On page 451, the same author says, “ where no actual bad motive is relied upon, it .is for the court to direct the jury in what way, or by what rule, or measure they should assess the damages. But there are cases whi.ch seem to justify the remark sometimes made in' them, by the courts, that there is no rule by which the damages can be measured, and they must be left to the discretion of the jury.”

Mr. Justice Grier, in delivering the opinion of (he court, *494 in Day v. Woodworth, 13 How., 563 , says: “ In actions of trespass, where the injury has been wanton and malicious, or gross and outrageous, courts permit the juries to add to the measured compensation of the plaintiff which he would have been entitled to recover, had the injury been inflicted without design or intention, something further by way of punishment or example, which has sometimes been called ‘ smart money.’ This has been always left to the discretion of the ju^-y, as the degree of punishment to be thus inflicted, must depend on the peculiar circumstances of each case.”

Gross negligence, or wanton mischief, will authorize a jury to find exemplary damages. V. & J. R. R. Co. v. Patton, 31 Miss., 156 .

The jury may take into consideration the motives of the defendant, and if the negligence is accompanied with a contempt of the plaintiff’s rights and convenience, they may give exemplary damages. Embler v. Myers, 6 Hurlst, and N., 54. There is a difference between an injury which is the mere result of such negligence, as amounts to little more than an accident, and an injury, willful or negligent, which is accompanied by expression of insolence. Ib.

Punitory damages are allowed, where the act causing the injury has been willfully done; where the circumstances show a deliberate, pre-conceived, or positive intention to injure, or that reckless disregard of the safety of person or property, which is equally culpable. Wallace v. Mayor, 2 Hilt., 440 . Exemplary, vindictive or punitive damages can never be recovered in actions upon anything less than gross negligence. There are many reported cases of mere ordinary negligence, in which damages have been awarded by juries to so large an amount, as to seem equivalent to exemplary damages; bub where such verdicts have been allowed to stand, it has been upon the ground, that the court could not clearly see that the amount awarded was more than a just compensation for the injury. It is often said, that exemplary damages may be awarded for gross negligence. But it appears to us that the real meaning of the court, in these cases, was, that such dam *495 ages may be awarded where the negligence is so gross as to raise a presumption, that the person in fault, is conscious of the probable consequences of his carelessness, and is indifferent, or worse, to the danger of injury to the persons, or property of. others. It is only in cases of such recklessness, thát, in our opinion, exemplary damages should be allowed. Sher. & Red., § 600.

The line of demarcation has not, in every instance, been clearly maintained between the several rules in these cáses. Judges have, in some instances, apparently' disregarded recognized distinctions to --some extent, and have referred rather indefinitely to damages as punitive, when they were properly compensatory only. The case of the S. R. R. Co, v. Kendrix, 40 Miss., 375 , may be cited as one, in which, to the careless reader, the characteristics of the two classes of cases mentioned are partially blended, and the injuries which may be rightfully considered as proper subjects of compensation, are classed as punitive in their character. Examined with these suggestions in view, the case cannot be consul, ered as exceptional, but in perfect accord with the current of adjudications on the subject.

Upon this branch of the case, the inquiry here naturally arises, what are proper subjects of compensation, in cases of injuries to the person, when merely compensatory damages can be allowed? We answer: The jury in estimating the damages, may take into consideration the loss of time and pecuniary expense consequent thereupon, and also the bodily pain, or any incurable hurt. Pierce, 495; Sedg.; Sherman & R., 10 Barb., 20 ib.

In an action for negligent injury to the person of the plaintiff, he may recover the expenses of his cure ; the value of the time lost by him during the cure, anS a fair compensation for the physical and mental suffering caused by the injury, as well as for any permanent reduction of his' power to earn money. Sher. & Red., § 606.

The juryjnay estimate future damages in the way of loss of health, and of time, disability of limbs so as to prevent *496 a party from pursuing his usual employment; (bodily pain and suffering, which are proved as reasonably certain to result from the original injury). Also, mental suffering may be taken into consideration, where actual injury to the person has been sustained. Ib.

In Morse v. Auburn & S. R. R. Co., 10 Barb., 621 , the nisiprixcs judge spoke of the damages so far as they might be enhanced by taking the pain and suffering of the plaintiff into the account, as exemplary in their character; but the supreme court held that, “ the physical pain and suffering ought to be taken into the account in estimating the damages in every action to recover for a personal injury occasioned by negligence, irrespective of any question of motive.” The defendant’s counsel in that case, insisted that all damages recovered beyond the actual loss of time, and pecuniary expense, were strictly exemplary, and that to authorize a plaintiff to recover damages of that character, he must show the injury to have been willful and malicious; but the supreme court held that, “damages for bodily pain and suffering arising from physical injury, and connected with actual loss of time and money, are not exemplary, or punitive in character, in any strict or proper sense of those terms.”

In Curtiss v. the Rochester & S. R. R. Co., 20 Barb. S. C., 282, the court say that, “in ascertaining the amount of plaintiff’s damages, it would be proper for the jury to consider the bodily pain and suffering which had occurred in consequence of the injury; but that they could not act upon conjecture” as to the prospective condition or situation of plaintiff; they could only regard in respect to the future, what the evidence rendered reasonably certain, would necessarily and inevitably result from the original injury. * * Such a consequence, which was necessarily and directly to flow from the injury,, was as much a part of it as the continuance of a physical disability which the injury occasioned. It was certainly proper for the j ury, in estimating the damages to the plaintiff, to regard the effect of the injury in future upon her health; the use of her limbs, her abilt.y to labor *497 and attend to ber affairs, and generally to pursue the course of life she otherwise might have done,- and I do not perceive why,” says the learned judge, who delivered the opinion of the court, “ it was not equally proper for them to consider its effects in producing bodily pain and suffering.”

The court further said, that the plaintiff was entitled « to recover damages for -both past and future pain of body, as well as for past and future deprivation of health, or of any of her bodily powers. In respect to all the -subjects of damage, it was requisite that they should be the legal, direct and necessary results of the injury, and that those which at the time of the trial were prospective, should not be conjectural. It was also requisite that they should be'supported by such clear and certain evidence as ought to produce conviction in fair minds. All such results, in the aggregate, constituted the injury. There is nothing speculative or contingent, in a legal view, in regard to such-damages. * * * They were general damages, implied by law, as much as a continued disability consequent upon a broken limb. The amount was to be controlled by the evidence disclosing the circumstances of the case, as similar damages must be in all such cases. ” This case has been since approved in court of appeals. 18 N. Y., 534 ; vide, also, Sher. & Red., 648, § 597; 2 Red., 220.

The supreme court, in Morse v. Auburn and Syracuse Railroad Co., 10 Barb., 621 , observe: i£ Exemplary or punitory damages, or ‘smart money,’ as they are often called, are given by way of punishment, for intentional wrong, and to operate as an example to others. The law, in such cases, looks beyond the act and its .injurious consequences, to the motive, and metes out its punishments to that also. In such cases, the compensation for the actual pecuniary damage is rather subsidiary and incidental. There, the mental suffering, the injured feelings, the sense of injustice, of wrong, or insult, on the part of the sufferer, enter largely into the account, and the measure of justice is graduated by that of the offend: er’s turpitude. ” In that case, the defendants’ counsel had *498 requested the judge at nisi prms, to charge the jury, that to justify a verdict for exemplary damages, they must find the defendants had acted wantonly, or maliciously, or hacE been guilty of negligence to such a degree as to be equivalent to malice. The judge, refused so to .charge, and in this5 the supreme court say “ he is correct. ”

On suits for merely vindictive damages, the jury are governed by no rule; but where a role can be discovered; the jury are bound to follow it. Walker v. Smith, 1 W. C. C., 152, Vindictive damages can only be given where the defendant has acted with an evil intention or bad motive. McCall v. McDowell, 1 Pac. Law Mag., 360 . In Hall v. Conn. River Steamboat Co., 13 Conn., 319 , the plaintiff, a passenger in a steamboat, in an action against the owners for damages, having proved the injury to himself, through the negilence of the master and crew, offered further evidence to show that while sitting upon the wharf, immediately after the injury, he applied to the master for some of his men to assist him into a carriage, who refused, saying, he had enough for his men to do on board. Held, that such evidence was admissible.

In the case at bar, the conductor had no apologies for stopping where he did, nor suggestions or offers of aid to his passenger when alighting, nor, when in pain, had he even a parting word of regret, that he must leave him in distress in the snow and mud. The record, if the facts are told, exhibits a disregard of those attentions, which the circumstances demanded, and which the jury would he at liberty to characterize as heartless and outrageous, or exceptionaal and excusable.

Our conclusions upon this branch of the case are, that the sixth charge given for plaintiff, is not only too broad, but is wanting in several particulars ; while the fourth, for defendant, refused, is too restricted. The two are hut the extremes of the questions they were intended to present. The one breaks down the dividing line between compensatory and punitive damages, and virtually submits to the jury both the law and facts. The other, as a rule to guide a jury, would be only a partial statement of the basis of exemplary damages- *499 We are of the opinion that the fourth charge asked by defendants, was properly refused, but that the court erred in giving the sixth for plaintiff. In lieu of that instruction, it was the viuty of the court to have informed the jury of the right of the plaintiff, first, to compensatory damages, and of the subjects of compensation, proper for them to consider in fixing the amount of their verdict; and secondly, the basis of ex. emplary damages, stating clearly the elements which should be proved to the satisfaction of the jury, to authorize them to go beyond the rule of compensation.

Where circumstances of aggravation are proved, the jury are the necessary, as well as the rightful judges of the amount of relief, but when no such facts are presented,.too much care cannot be taken to apply settled rules to the subject of compensation. Sedgwick, 545.

In Heil v. Glanding, 42 Penn., § 493, the nisi prius judge instructed the jury, “that if they found for the plaintiff, the measure of damages would be as to the horse, his value, with interest; but as it is no certain rule by which to estimate the damages for the personal injury to the plaintiff, they would fix them at such sum as they should think right and proper under the evidence. Held that the instruction should have been more precise; and the court say: “ It is true, as the learned judge said, there is no certain rule by which to estimate the damages for an injury to the person, but there aye guides.”

Pa. R. R Co. v. Vanderver, 36 Penn., 298 , and Pa. R. R Co. v. Kelly, 31 Penn., 372 , were cases of compensatory damages merely. Instructions submitting the questions of damages, without restriction, to the jury, were condemned oh error, and it was declared to be “ the duty of the court to' give definite instructions to the jury as to the true measure of damages.”

The right to damages is a question of law for the court. The facts are for the jury. The 6th instruction finder consideration, is not merely too broad, but in effect it submits the whole case, law and fact, to the jury. The court com *500 mitted a serious error in not explaining some of the “ guides” in this class of cases, in aid of the judgment of the jury. See 2 Red., 320; Sedgwick, 36, 112, 664-5. Sher. & Red., 646-648; 18 Ill., 416 ; Curtiss v. R. & S. R. R. Co.; 18 N. Y., 534 ; Pierce, 254, 493-4-5, and case cited in notes ; 2 Parsons on Con., 451.

Observing more definitely as to the amount awarded the plaintiff by the jury in this case, we repeat, that the record does not disclose whether the verdict was intended to be compensatory only, or punitory in its character.

If the jury considered the damages awarded by them as exemplary, they were not without evidence upon which to base their finding. Having stopped the train at an unusual place, and the ground being treacherous from snow and mud the conductor was under special obligations to extemporise a means of exit to his passenger, or at least to render such services and attentions as would render his exit safe. So far from exhibiting the courtesies due from one in his position, he appears to have • been stolidly indifferent, alike to' the safety and comfort of the plaintiff while alighting from the car, and to his sufferings after the accident. 'If, therefore, the jury intended the damages awarded by them as vindictive, they were not without grounds for their verdict. If the jury construed the conduct of the conductor as a willful disregard of a public duty, and a heartless indifference to the safety and comfort of one under his care, their judgment can hardly be impugned.

But if the damages were considered compensatory only, they cannot be regarded as excessive, either in view of the facts, or when compared with the very numerous cases of this character. The accident occurred in January,. 1869. A jury in October of the same year, rendered a verdict of $2,00Q for plaintiff, and another in August, 1870, awarded the plaintiff $4,500. Upon a similar state of facts, some verdicts have been less, but many much more than this. Few of us, we apprehend, even of those who have passed the meridian of life, would be willing to take a permanently *501 crippled limb with twice or thrice $4,500. In Curtiss v. R. & S. R. R. Co., 20 Barb., 282 , the cars ran off the track, whereby the plaintiff was seriously, if not permanently injured, but there was no proof of gross negligence, and the defendant’s counsel contended that the recovery should be only the actual pecuniary loss to plaintiff. The jury awarded $4,500 damages, as to which the court say: “ There was evidence showing that the plaintiff had been most of the time since the injury, incapacitated by it from labor; and there was also evidence tending to prove that the disability would be permanent, or at least, long continued. I cannot say, in view of this evidence,” says Mr. Justice Strong, who delivered the opinion of the court, “ that the sum is too great, much less that the damages are so excessive as to indicate partiality, prejudice, passion, or anything improper in the jury.”

In the case at bar, the plaintiff was for several months under the care of a physician, who testified that he was permanently disabled. The issue has been twice determined, the verdict of the second jury exceeding that of the first by $2,500. Independently of our reliance upon the jury, we are not prepared to say, that our own judgment does not approve the finding in this case. The average of awards in this class of cases, is above rather than below the sum allowed in this instance. Indeed, $4,500 can scarcely be said to be adequate compensation for several months of suffering, physician’s charges, other expenses, loss of time, and a crippled limb for life. Vide , 2 Red., 220, and several cases cited.

Ought this case to be sent back for a new trial? Our predecessors in Cameron v. Watson et al., 40 Miss., 191 , refused to grant a new trial where “ the verdict was correct, notwithstanding the erroneous instruction.” And the court say: “ In such a case, the error in the instruction is not ground for granting a new trial where it is manifest that the verdict was correct, upon the facts appearing in the record.” '

So in Fore v. Williams, 35. Miss., 533, instructions submit *502 ting both the law of the case and the facts to the jury, being assigned for error, the court say: “ This was obviously irregular and improper; but it appears the jury came to a correct conclusion upon the Subject; and as the error in the court did not operate to the defendant’s prejudice in law, it was no ground for setting aside the verdict and granting a new trial.” Vide, also, N. O., J. & G. N. R. R. Co. v. Statham, 42 Miss., 607 , Sedg., 713, 714; 2 Parsons, 451 , 452.

Mr. Justice Story, in Thurston v. Martin, 5 Mason, 197 , says : “ It is one thing for a court to administer its own measure of damages, in a case properly before it, and quite another thing to set aside the verdict of a jury, merely because it exceeds that measure. The court in setting aside a verdict for excessive damages, should clearly see that they are excessive; that there has been a gross error, that there has been a mistake of the principles upon which the damages have been estimated, or some improper motives, or feelings or bias, which have influenced the jury. * * * * Upon a mere matter of damages, where different minds might, and probably would arrive at different results, and nothing inconsistent with an honest exercise of judgment appears, I, for one, should be disposed to leave the verdict as the jury found it.”

This record is wanting in some information we should be glad to have before us, such as the age, occupation or profession of plaintiff; more exact information as to the injury and its effects upon the ability of plaintiff to labor, and further developments as to the conduct of the defendants servants, and the causes of the neglect to stop at the Che-walla platform. But there is sufficient in the record to enable us to compare, this with other like cases, as we have done with a great number, with the conclusion that this case is by no means exceptional. The verdict appears to be not only by comparison, but as far as we can exercise our own judgment, fairly compensatory only. According to the jury, an honest exercise of judgment; unable to discover any mistake of the principles upon which the dama *503 ges have been estimated; not prepared to say that the damages are excessive in any point of view; certainly no gross error appears, or has been pointed out to us; indeed not prepared to say from the evidence, that'the sum is too great even, observing no evidence of partiality, prejudice, passion, ■or any improper motives or feelings, or bias on the part of the jury, we see no reason in the damages awarded, why the judgment should be reversed.

Having reached the conclusion that the verdict of the jury is substantially just, it devolves upon us in accordance with the rulings of our predecessors and of the practice in other states, to affirm the judgment, notwithstanding the erroneous instruction, which we have discussed, and the failure of the circuit judge to afford the jury such other and further -“•guides” as they were entitled to in aid of their deliberations. 40 Miss., 101 ; 35 ib., 533; 42 ib., 607; 23 Ill., 498 ; 2 Parsons, 451 , 452; Sedg., 713.

The judgment is affirmed. .

A .petition for a re-argument was filed and refused.