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§ 827. Where a gas company digs a trench in a street it is its duty to fill it up so that the street will be in as good condition as before the excavation was made, and to prevent any injury which might result from sink-holes being formed by storms and rainfalls. Ibid.

§ 828. Defective streets in District of Columbia.- The act of congress providing for the government of the District of Columbia gives the municipality no control over the public streets, but gives such control to a board of public works, created, appointed and paid by the general government. Hence the District cannot be held liable for an injury caused by a defect in one of the streets therein, whether caused by the negligence of the board or otherwise. Barnes v. District of Columbia,* 1 MacArth., 322.

§ 829. Notice of defect― Allegation of.― Plaintiff was injured by falling into an excavation twenty feet in length and twelve feet wide, which had negligently been allowed to remain open and unguarded in one of the principal streets of Omaha. He brought action against the city for damages. It was urged in defense that the city was not liable in the absence in the petition of an averment that it had notice of the defect which caused the injury. Held, that the petition was sufficient as against the objection urged on demurrer. That, considering the nature of the street, the size and character of the excavation, and the express allegation of carelessness, the petition alleged facts showing a prima facie liability on the part of the defendant. Serrot v. Omaha City,* 1 Dill., 313.

§ 830. Under an act of Rhode Island (Dig., 299) requiring every person who shall have any money due to him from any town, or any demand against any town for any matter, cause or thing whatsoever, to present "a particular account of his debt or demand, and how contrac ed," held, that notice to the inhabitants was necessary before an action on the case could be brought against the treasurer for damages suffered by reason of a defect in a highway which the town was bound to keep in repair. Holland v. Town Treasurer of Cranston, 1 Curt.. 497.

§ 831. road too narrow.- Action under the statute of Rhode Island to recover $6,000 damages for injuries received by plaintiff through the alleged negligence of the defendant, the city of Richmond, in not providing a suitable highway. At the time of the accident plaintiff was driving along the highway in a one-horse wagon when he met an ox team at a point where the road, on account of its rutty and dangerous condition, was too narrow to allow the passage of two teams. Both drivers accordingly led the horse over the rocky and dangerous portion of the road, and the ox driver thinking all danger passed returned to his cattle, when he heard a shriek, and on looking saw plaintiff under his wagon with his leg broken and the horse tangled by the harness in the bushes. Held, as to notice, that the notice given the town of the injury, and demanding general indemnity therefor, was sufficient to sustain an action ex delicto, it not being necessary to specify the amount demanded or other particulars; that the use of the road for twenty years would make it a public highway; that the remedy under the statute must be strictly pursued; that the whole width of the public highways need not be made passable for two teams, provided stopping or turning-out places existed at suitable and convenient points; that plaintiff must show the exercise of due care on his part, and that if the cause of the accident was unknown and disconnected with the defendant then plaintiff could not recover. Two trials resulted in a disagreement of the jury first and then a verdict for defendant. Hull v. Richmond,* 2 Woodb. & M., 337.

§ 832. Private way-Duty and liability of owner.- Petitioner was injured by falling into an unguarded excavation in a private alley through which he was lawfully passing in the night. Held, that the owner of a private way is not bound to keep it in repair, and owes, in respect to it, no duty to the public. Nugent v. Wann,* 1 McC., 438.

§ 833. A person going through a private alley-way was injured by falling into an open excavation. In an action against the proprietor of the way for damages on the ground of negligence, held, if a private way be customarily used by the public, the proprietor thereof is liable for placing therein anything to endanger the safety of persons passing over it. But a knowledge of such public usage must be shown to render him liable. Ibid.

§ 834. A peace-officer, in pursuit of a criminal in the night, while passing through an alley fell into an unguarded excavation and was injured. Suit was brought against the proprietor of the alley for damages. Held, that a peace or police officer has a right to go through a private way at any hour of the night in the discharge of his duty. Ibid.

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XII. DAMAGES.

[See CONTRACTS; DAMAGES.]

SUMMARY - Exemplary damages, § 835.- Wrongful expulsion from car, §§ 836, 837.- Permanent injury, § 838.— Elements of compensation, §§ 838, 839.— Excessive damages; new trial, § 840.- Trespass on timber lands of United States, § 841.

§ 835. No exemplary damages can be given for an injury caused merely by a negligent railway collision without evidence of malice or evil intent, not even though the negligence might be called "gross." Milwaukee & St. Paul R. Co. v. Arms, §§ 842, 843.

§ 836. Damages for an unlawful expulsion from the cars may properly include compensation for loss of time, price of a second ticket, expenses of stopping over, and also for the indignity of an unlawful expulsion. Quigley v. Cent. Pac. R. Co., §§ 844-846.

§ 837. Where, by reason of an unlawful expulsion from the cars, plaintiff sustained actual damages of about $50, held, that $100 would be sufficient compensation for the indignity of his expulsion, and a verdict for $1,052 was set aside as excessive. Ibid.

§ 838. For personal injuries from a single act, one action only can be brought, and there can be but one assessment of damages. Where the jury are satisfied that the injury is a permanent one, they are to take into consideration the future consequences to the plaintiff, so far as respects loss of time, bodily pain and suffering, and inability to labor. Wightman v.

City of Providence, §§ 847-849.

§ 839. The law goes no further than to point out the grounds of complaint which may be taken into account as elements of computation, and the evidence that may be introduced to support the claim, and when that is done the estimation of the amount is necessarily left to the jury. Ibid.

§ 840. The plaintiff was walking upon the sidewalk, and, while passing over a part of it that was covered with ice, slipped and fell, and was injured. He brought suit, and the jury awarded him damages for the injuries received. On motion for a new trial, on the ground that the damages assessed by the jury were excessive, it was held that courts of justice will not grant a new trial except when the verdict is so large as to satisfy the court that it was perverse or the result of gross error, or that the jury have acted under the influence of undue motives or misconceptions. Ibid.

§ 841. Where timber is cut from lands of the United States innocently and without an intention to trespass, the measure of damage is the value of the timber where cut, without regard to the labor put upon it by the person who cut it. But where the trespass was intentional he must pay the full value of the property, even though enhanced by the labor of the trespasser. These rules apply even against an innocent purchaser. Wooden Ware Co. v. United States, §§ 850, 851.

[NOTES. See §§ 852-903.]

MILWAUKEE & ST. PAUL RAILWAY COMPANY v. ARMS.

(1 Otto, 489-495. 1875.)

ERROR to U. S. Circuit Court, District of Iowa.

STATEMENT OF FACTS.- Action for damages for injuries sustained in a collision of two trains of cars. The court instructed the jury that if they found there was gross negligence they might give exemplary damages.

Opinion by MR. JUSTICE DAVIS.

The court doubtless assumed, in its instructions to the jury, that the mere collision of two railroad trains is, ipso facto, evidence of gross negligence on the part of the employees of the company, justifying the assessment of exemplary damages; for a collision could not well occur under less aggravated circumstances, or cause slighter injury. Neither train was thrown from the track, and the effect of the collision was only to demolish the fronts of the two locomotives. It did not even produce the "shock" which usually results from a serious collision. The train on which Mrs. Arms was riding was moving at a very moderate rate of speed; and the other train must have been nearly, if

not quite, stationary. There was nothing, therefore, save the fact that a collision happened, upon which to charge negligence upon the company. This was enough to entitle Mrs. Arms to full compensatory damages; but the inquiry is whether the jury had a right to go farther and give exemplary dam

ages.

$842. Damages usually compensatory, but may be exemplary.

It is undoubtedly true that the allowance of anything more than an adequate pecuniary indemnity for a wrong suffered is a great departure from the principle on which damages in civil suits are awarded. But although, as a general rule, the plaintiff recovers merely such indemnity, yet the doctrine is too well settled now to be shaken, that exemplary damages may in certain cases be assessed. As the question of intention is always material in an action of tort, and as the circumstances which characterize the transaction are, therefore, proper to be weighed by the jury in fixing the compensation of the injured party, it may well be considered whether the doctrine of exemplary damages cannot be reconciled with the idea that compensation alone is the true measure of redress.

But jurists have chosen to place this doctrine on the ground, not that the sufferer is to be recompensed, but that the offender is to be punished; and, although some text-writers and courts have questioned its soundness, it has been accepted as the general rule in England and in most of the states of this country. 1 Redf. on Railw., 576; Sedg. on Measure of Dam., 4th ed., ch. 18 and note, where the cases are collected and reviewed. It has also received the sanction of this court. Discussed and recognized in Day v. Woodworth, 13 How., 371, it was more accurately stated in The Philadelphia, Wilmington & Baltimore R. Co. v. Quigley, 21 How., 213 (33 495-99, supra). One of the errors assigned was that the circuit court did not place any limit on the power of the jury to give exemplary damages, if in their opinion they were called for. Mr. Justice Campbell, who delivered the opinion of the court, said: "In Day v. Woodworth this court recognized the power of the jury in certain actions of tort to assess against the tort-feasor punitive or exemplary damages. Whenever the injury complained of has been inflicted maliciously or wantonly and with circumstances of contumely or indignity, the jury are not limited to the ascertainment of a simple compensation for the wrong committed against the aggrieved person. But the malice spoken of in this rule is not merely the doing of an unlawful or injurious act; the word implies that the wrong complained of was conceived in the spirit of mischief, or criminal indifference to civil obligations."

As nothing of this kind, under the evidence, could be imputed to the defendants the judgment was reversed. Although this rule was announced in an action for libel, it is equally applicable to suits for personal injuries received through the negligence of others. Redress commensurate to such injuries. should be afforded. In ascertaining its extent the jury may consider all the facts which relate to the wrongful act of the defendant, and its consequences to the plaintiff; but they are not at liberty to go farther, unless it was done wilfully, or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them. In that case the jury are authorized, for the sake of public example, to give such additional damages as the circumstances require. The tort is aggravated by the evil motive, and on this rests the rule of exemplary damages.

§ 843. Where there is gross negligence, only compensatory damages are given. It is insisted, however, that, where there is "gross negligence," the jury can properly give exemplary damages. There are many cases to this effect. The difficulty is that they do not define the term with any accuracy; and, if it be made the criterion by which to determine the liability of the carrier beyond the limit of indemnity, it would seem that a precise meaning should be given to it. This the courts have been embarrassed in doing, and this court has expressed its disapprobation of these attempts to fix the degrees of negligence by legal definitions. In The Steamboat New World v. King, 16 How., 474, Mr. Justice Curtis, in speaking of the three degrees of negligence, says: “It may be doubted if these terms can be usually applied in practice. Their meaning is not fixed, or capable of being so. One degree thus described not only may be confounded with another, but it is quite impracticable exactly to distinguish them. Their signification necessarily varies according to circumstances; to whose influence the courts have been forced to yield, until there are so many real exceptions that the rules themselves can scarcely be said to have a general operation. If the law furnishes no definition of the terms 'gross negligence' or 'ordinary negligence' which can be applied in practice, but leaves it to the jury to determine in each case what the duty was, and what omissions amount to a breach of it, it would seem that imperfect and confessedly unsuccessful attempts to define that duty had better be abandoned."

Some of the highest English courts have come to the conclusion that there is no intelligible distinction between ordinary and gross negligence. Redf. on Car., sec. 376. Lord Cranworth, in Wilson v. Brett, 11 M. & W., 113, said that gross negligence is ordinary negligence with a vituperative epithet; and the exchequer chamber took the same view of the subject. Beal v. South Devon Railway Co., 3 H. & C., 327. In the common pleas, Grill v. General Iron Screw Collier Co., Law Reps., C. P., 1 (1865-66), was heard on appeal. One of the points raised was the supposed misdirection of the lord chief justice who tried the case, because he made no distinction between gross and ordinary negligence. Justice Willes, in deciding the point, after stating his agreement with the dictum of Lord Cranworth, said: "Confusion has arisen from regarding 'negligence' as a positive instead of a negative word. It is really the absence of such care as it was the duty of the defendant to use. Gross' is a word of description and not of definition; and it would have been only introducing a source of confusion to use the expression 'gross negligence' instead of the equivalent, a want of due care and skill in navigating the vessel, which was again and again used by the lord chief justice in his summing up."

"Gross negligence" is a relative term. It is doubtless to be understood as meaning a greater want of care than is implied by the term "ordinary negligence;" but, after all, it means the absence of the care that was necessary under the circumstances. In this sense the collision in controversy was the result of gross negligence, because the employees of the company did not use the care that was required to avoid the accident. But the absence of this care, whether called gross or ordinary negligence, did not authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted. To do this there must have been some wilful misconduct or that entire want of care which would raise the presumption of a

conscious indifference to consequences. Nothing of this kind can be imputed to the persons in charge of the train, and the court, therefore, misdirected the jury. For this reason the judgment is reversed and a new trial ordered.

QUIGLEY v. CENTRAL PACIFIC RAILROAD COMPANY.

(Circuit Court for Nevada: 5 Sawyer, 107–115. 1878.)

Opinion by HILllyer, J.

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STATEMENT OF FACTS. This action was brought to recover damages for putting plaintiff off defendant's cars. The jury found a verdict for plaintiff and assessed the damages at $1,052.50. Defendants move for a new trial on several grounds, the first of which is that the verdict is against the evidence. It is said that it was shown by evidence, as to which there was no conflict, that the ticket agent delivered ticket 1495 (the first one) to plaintiff, who therefore had no right to ride on ticket 1496, the one he offered to the conductor who ejected him from the car.

§ 844. It is the duty of a vendor of railway tickets to see that the ticket is delivered to the party who has paid for it.

In regard to the circumstances attending the purchase of the ticket the jury had the statement of the ticket agent and of the plaintiff. There was a question whether the agent, even if he did put the ticket and change on the counter, as he says, was reasonably careful to see that the plaintiff was there to receive them. The question of delivery was left to the jury upon instructions to which neither party excepted, and among other things they were told that it was the duty of the ticket agent to exercise reasonable care in delivering the ticket so that the purchaser might get it. If the purchaser had been called away after applying for the ticket and putting down his money, it would be no delivery to put down the ticket on the counter in his absence. In addition to this it appeared that when the plaintiff came back and asked for his ticket the agent gave him ticket 1496 without hesitation, and did not question plaintiff's right to it until he found ticket 1495 was missing. On this point there seems to be no good ground for disturbing the verdict.

§ 845. Damages may be given for the indignity of an unlawful expulsion from cars.

The second ground is that the instruction allowing the jury to give damages for the indignity was wrong. The court charged the jury that this was no case for vindictive damages; that the plaintiff was entitled to recover, if at all, compensation for the injury, and that this would include the price of a second ticket, loss of time and expenses of staying over, and that they were entitled to take into consideration the indignity, and allow upon the whole as damages, not a fanciful or extravagant amount, but a sum which, as fair and reasonable men, they considered a compensation for the injury under the circumstances. From the evidence it is clear that the jury in making up verdict fixed the amount for the ticket, expenses and loss of time at $52.50, and for the indignity at $1,000. The defendant argues that this latter sum should be all rejected, and at most the verdict ought to be for $52.50. That is to say, that plaintiff can only recover his actual pecuniary loss, capable of arithmetical exactness in computation - nothing for injuries which cannot be said to have caused him a money loss. The position taken by the defendant in every transaction of this kind confines the compensation to this narrow

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