#### Calvin M. Gibson v. Anderson Webster.

1. New trial—improper instructions. Instructions not based upon the evidence in the case, and which were calculated to mislead the jury, constitute good grounds upon which to award a new trial.

2. Same—nerfiiet against the evidence. Anew trial will be granted where the verdict of the jury shows a wanton disregard of the evidence.

*484Writ of Error to the Circuit Court of Clay county; the Hon. Aaron Shaw, Judge, presiding.

The facts in this case are stated in the opinion.

Mr. W. B. Cooper, for the plaintiff in error.

Mr. W. Stoker, for the defendant in error.

Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action brought by Gibson against Webster for an assault and battery. The first three instructions given for the defendant should have been refused. They are based on the hypothesis that the first assault was made by Webster upon Gibson, that this assault was terminated, and that then Gibson made a new and independent assault upon Webster, in which he received these injuries. There is no evidence to sustain this theory, and the instructions were calculated to mislead the jury. The verdict was extraordinary. The evidence shows a wholly unprovoked assault of the most brutal character, in which Webster, having thrown Gibson to the floor, continued to strike him after he was down, and in the assault dislocated Gibson’s ankle, and broke the small bone of his leg. Gibson was confined to his house from four to six weeks, obliged to go on crutches and a staff for several months, during which time he was unable to work, and he is left with a stiff and enlarged ankle for life. For these unprovoked and wanton injuries the jury gave the plaintiff a verdict of twenty-five dollars. Such verdicts are a disgrace to the administration of justice. The jury that found this one must have thought that to wantonly assault and brutally beat a man, is little more than an innocent pastime. We trust that upon another trial the case will be passed upon by a jury that has a juster appreciation of its duties.

Judgment reversed.