#### Railway v. Hall.

Decided March 1, 1890.

1. Exemplary damages — Negligence without malice.

In an action against a railway company to recover damages for a personal injury, occasioned by the negligence of its servant, it is error to charge the jury respecting exemplary damages, where it is not shown that the servant was guilty of willfulness or conscious indifference to consequences from which malice may be inferred.

2. Same — Remittitur of excessive damages.

Where, in such an action, in addition to compensatory damages for plaintiff’s expenses, 'for his loss of time and his diminished capacity for *8labor, and for his suffering, the jury are erroneously instructed to consider the element of punitive damages, a remittitur of such excessive damages will not be allowed

APPEAL from Garland Circuit Court.

J. B. Wood, Judge.

The plaintiff Hall s.ued the St. Louis, Iron Mountain and Southei-n Railway Company, alleging that while traveling in a wagon and passing over defendant’s track at a public crossing in Saline county, Arkansas, the employes of defendant in charge of one of its engines then standing on the track at or near said crossing unnecessarily, wantonly and willfully caused the steam to escape from the engine in such manner as to frighten the mules plaintiff was driving, so that they ran away, throwing plaintiff out of the wagon and causing him such injury as would cripple him for life. The damages were laid in the sum of $20,000.00.

The evidence showed that, in obedience to a signal “to slack the engine back a little,’’ defendant’s engineer, without noticing plaintiff's danger, negligently permitted the steam to-escape in such manner as to frighten plaintiff’s mules. Testimony as to plaintiff’s wage-earning capacity and its deterioration by reason of the injuries sustained, and as to his expenses and sufferings was introduced. The court instructed the jury that if defendant’s servants were guilty of gross, wanton and willful negligence, they might award punitive damages to plaintiff.

The jury returned a verdict for $13,500 for plaintiff and defendant appealed. It is insisted that the verdict was excessive and that the instruction as to punitive damages was abstract and erroneous.

Dodge & Johnson for appellant.

1. Where the act complained of was a usual or necessary act, and was performed under circumstánces not calculated to *9inform the servant that it would be likely to cause injury to the traveler by frightening his team, the law is clear that there is no liability on part of defendant for the unfortunate consequences of an unforeseen result. 58 Iowa, 242; 51 Cal., 605; 8 A. & E. R. Cas., 248; 69 Me., 208; 114 Mass., 3S0; 15 A. & E. R. Cas., 491; 140 Mass., 79; 37 A. & E. R. Cas., 484; 98 N. C., 247; 28 N. W. Rep., 464.

2. This was not a case calling for exemplary damages. Field on Dam., sec. 34; 36 Conn., 182; 51 Ills., 467; 47 Mo., 90; 47 N. Y.,282; 9 W. Rep., 612; 33 A. & E. R. Cases, 407; 1 Otto, 489; 21 How., 213; 2 Wall. Jr., 164; Sutherland on Dam., 724; 34 A. & E. R. Cas., 432; 4 So. Rep-, 359; 52 Ill., 451; 77 Ga., 788; 78 Pa. St., 219. Malice is not implied by the mere unlawfulness of the act. 35 Iowa, 306. Nor from themerely negligent doing of a lawful zct. 46 Tex., 272. See also, 76 Ala., 176; 62 Md., 301; 40 Cal., 657; 39 Ark., 387-448; 41 Ark., 295; 56 N. Y., 44.

3. The damages were excessive.

4. After reviewing the Arkansas cases, and many others on the subject of entering a remittitur, contend that, where a verdict includes damages which a party is entitled to recover, with those which he should not recover, and they are not clearly severable, then the only correct course is to grant a new trial. 11 Ark., 280; 23 Ark., 112; 26 Ark., 94; 29 Ark., 448-453; 30 Ark., 505; 36 Ark., 511; 38 Ark., 238; 15 Pac. Rep., 499; 7 S. W. Rep., 378; 7 S. W. Rep., 492; 8 Atl. Rep., 462; 11 N. W. Rep., 60; 2 Atl. Rep., 751; 70 Ga., 119, 127; 74 Ga., 737; 27 N. W. Rep., 87; 15 Fed. Rep., 490; 11 Wis., 407; 55 Wis., 120.

Sanders & Watkins for appellee.

1. The act of the engineer in opening the steam valves at the particular time was gross, wanton and willful negligence, and the railroad was liable. Wood on Railways, vol. 2, p. *101332; 1 Abb. N. C., 440; 8 Mo. App., 488; 76 Ind., 166; 17 Kan., 475; 47 Ill., 298; 63 Ill., 151; 55 Me., 442; 59. Penn. St., 259.

2. Exemplary damages were properly allowed. 84 Ala., 608; 36 Fed. Rep., 252; 42 Ark., 322; 1 Dillon, 568; 17 A. & E. Corp. Cas., 55.

3. The verdict not excessive. 36 Miss., 660; 64Barb., 438; 63 Barb., 260; 123 U. S., 710; 48 Cal., 409; 43, Iowa, 662; 63 111., 167; 38 Iowa, 592; 13 Nev., 106; 24 Plun., 184.

4. When a remittitur will cure the only error, it is allowable. 87 Mo., 43; 3 Mason (C. C.), 102; 12 Barb.,, 494; 49 N. H., 370; 44 Miss., 480; 62 Wis., 150.

Sandels, J.

Such absence of care by appellant’s servants was inferable from the proof as well warranted a recovery by plaintiff.

1. Exemplary damages — Negmalfce! The cause appears to have been fairly tried upon instL ' A so far as determining the fact of defendant’s liability and ascertaining plaintiff’s compensation were concerned. But we are of opinion that the court erred in giving the third prayer of plaintiff respecting exemplary damages. The testimony does not present a case which demands more of the defendant than compensation. The element of willfulness or conscious indifference to consequences, from which malice may be inferred, is lacking. The engineer of defendant appears to have occasioned the injury while in the performance of his duty. He is not shown to have acted otherwise' than with a careless unconsciousness of plaintiff’s possible danger. Kelly v. McDonald, 39 Ark., 387; Railway v. Arms, 91 U. S., 489; Railway v. Quigley, 21 How., 202; Field on Damages, sec. 34; Sutherland on Damages, 724.

2. Remittitur of exem pla ry Sallowed116 Having reached the foregoing conclusion, it was referred to counsel for argument, whether the court had the right to *11permit a remittitur (in case the appellee saw fit to so proceed) as a condition to an affirmance.

We have given the subject the consideration which its importance demands.

The history of the practice seems to be the same in the various States. It was originally held that a remittitur could be entered only in actions ex contractu, or incases of damage to property where the value of the property furnished an exact measure of damages properly recoverable. And further that it was permissible only where the remittittir could cure the only error complained of. Such were the decisions in this State, and such the rule of this court. Fowler v. Johnson, 1 1 Ark., 280; Hirsch v. Patterson, 23 Ark., 112; Hardy's Ex. ex parte, 26 Ark., 94; Hamlett v. Tallman, 30 Ark., 505; Dodds v. Roane, 36 Ark., 511; Ferguson v. Fargason, 38 Ark., 238.

Railway v. Barker and wife, 39 Ark., 491, was the first departure from the previous limits, and established in this State the practice, prevalent in most others, of allowing a.remittitur in all cases, where excessive damages were the only element of error.

In Blunt v. Little, 3 Mason, 102, Judge Story says that a verdict for damages should not lightly be disturbed on the ground of excessiveness, and that, in permitting a remittitur where such excessiveness was the only error, he felt that he went to the limit of the law. And so we think. The case of Railway v. Barker is certainly “the limit of the law.” In this cause the jury had properly before them the plaintiff’s expenses, his loss of time, his diminished capacity for labor, and his pain, anguish and suffering. The difficulties which would beset a court in determining the justness or excessiveness of a verdict based upon these premises alone would not be inconsiderable. But superadd the element of punitive damages erroneously allowed, and the process by which the court is to dissect the verdict, eliminate the error, eliminate *12the excess of compensation and settle upon the exact sum which plaintiff’s case entitles him to have “passeth all understanding.”

To attempt it, we think, would be a violation of the spirit of the Constitution, which intends that every litigant shall have a trial of his cause before an impartial jury upon proper declarations of the law.

Reversed and remanded.

Battle and Hemingway dissent.