field unless the circumstances of the case justify exemplary damages. No authority directly in point is cited by defendant in support of this position, and certainly this absence of authority, when we consider the vast number of cases upon this branch of the law of damages, is a strong argument that it is not law. On the other hand there is direct authority to support the instruction given in this case and many other cases in which, although the question was not raised, it is plain that damages were awarded for the indignity put upon the person, according to the circumstances of the various cases.

In a New York case the court held that compensatory damages include not only compensation for loss of time and the amount paid for another passage when one is unlawfully expelled from the cars, "but in addition the injury done to his feelings might be taken into consideration and a suitable recompense given therefor." Hamilton v. Railroad Co., 53 N. Y., 25. So in Illinois, where a colored woman was excluded from the ladies' car, the court sustained as correct an instruction that if the jury believed the plaintiff was wrongfully excluded from the car they might give damages above the actual pecuniary loss sustained "for the delay, vexation and indignity to which the plaintiff was exposed." Railroad Company v. Williams, 55 Ill., 185.

The supreme court of Nevada, when this same case was before it, held that the injury to the feelings caused by a public expulsion from the cars was a proper subject for the consideration of the jury, citing Hamilton v. Railroad Company, supra, with approval; Quigley v. Central Pacific Railroad Company, 11 Nev., 350. The cases in 34 California do not in fact decide otherwise, although they show a disposition to bring the damages in these cases down to a small figure. In Turner v. Railroad Company, 34 Cal., 594, the court below had refused to charge the jury that they could not take into consideration the feelings, whether injured or not, of the plaintiff, but the supreme court do not decide whether this was right or wrong.

In Pleasants v. Railroad Company, 34 Cal., 586, the court hold the plaintiff entitled to nominal damages for a wrongful expulsion, although no actual damage is shown. But the court cannot mean to say that nothing in these cases can be recovered for except the actual money loss; for, in the next case of Tarbell v. Railroad Company, 34 Cal., 616, in which, as the court says, "there is no evidence in the transcript which has any bearing on the question of damages except the naked fact that the plaintiff was put out of the cars at a point ten or twelve miles from his place of destination, and five miles from the place of departure," a verdict for $500 was held greatly disproportionate to the injury, and a new trial was ordered unless the plaintiff would take a judgment for $100. For what was $100 allowed in the absence of all proof of actual pecuniary loss? It was altogether too much for a walk of ten miles and the delay of three or four hours, not shown to have occasioned any special damage. It seems that even in this case the court must have allowed something for the indignity attending the violation of plaintiff's rights.

As a matter of fact it is hard to find a case of this class in which something more has not been allowed to plaintiff than his actual pecuniary loss, and that, too, in cases where the jury have been confined to the giving of compensatory as distinguished from exemplary damages. The time, place and manner of the act causing the injury are all proper facts to be shown to the jury. Why? Clearly for no other reason than that these circumstances may properly affect the amount of damages to be recovered. It is an indignity to put

a man off the cars who has a legal right to be there, and this indignity is part of the injury. In nine cases out of ten, probably, it is the real thing for which most of the damages are allowed.

Nearly all the cases to be cited on the question of excessive damages are in point here as showing that in no case have the jury been required to confine themselves to the actual pecuniary loss. The instruction was right and is abundantly supported by authority. The only question remaining is as to the amount of damages. The point is made that they are excessive. $846. Excessive damages.

The facts are these. When the plaintiff purchased his ticket at Elko, some misunderstanding arose between him and the ticket agent, the agent claiming that plaintiff had received both ticket No. 1495 and 1496, and plaintiff denying it. Before the train left Elko the agent insisted that plaintiff should return ticket 1496 to him, and told him he would not be allowed to ride on it. When the train started the agent tried to prevent plaintiff from getting aboard, but plaintiff jumped on after the train was in motion. About a quarter of a mile from Elko the conductor demanded his ticket, and he gave him ticket 1496. The conductor kept the ticket, telling plaintiff he could not ride on it, as he had not paid for it, and requested him to get off. Plaintiff refused, and after some words the conductor, in the presence of other passengers, put him off the car, using no more force than was necessary. He got on again to get his valise, and was again put off. Plaintiff then returned to Elko, where he was obliged to stay one day and purchase another ticket. It is apparent, also, that there was great negligence on the part of the plaintiff, when he purchased the ticket, in not attending to its receipt when he paid for it, which contributed largely to engender the dispute which arose and which afforded some reasonable ground for the course pursued by defendant's employees. This affords a strong mitigating circumstance. The action of the conductor was evidently in entire good faith. This is a fair statement of the injury, and the question is whether the verdict is so disproportionate as to indicate prejudice or passion on the part of the jury. No special damage was proved. That portion of the damages capable of accurate estimation in dollars and cents is the $42.50 for a ticket, one day's loss of time and the expense of stopping over one day in Elko, the last two items amounting to $10, making $52.50 in all, and leaving $1,000 as compensation for the injury to the plaintiff's feelings caused by the indignity of a public expulsion from the cars.

The plaintiff is entitled to compensation for his injury as justly as for the other items, although it is not capable of an arithmetical money computation. In such case much must depend upon the jury. All that the parties have a right to ask is the honest, unprejudiced judgment of the jurors, and when they get that no court will set aside the verdict and substitute its own judg ment for that of the jury, even though the verdict is larger than the court would have found if in the juror's place.

In this case, upon the question of compensation for the indignity, there is room for some honest difference of opinion; if the verdict is not inconsistent with that it should stand. In the books the opinions of courts and verdicts of juries show a wide difference of opinion in these cases as to what just compensation is, and what action of a jury shows such prejudice or passion as will compel the court to set aside a verdict.

When the present case was in the state court, the verdict of the jury was for $5,000, upon the same state of facts now before us, and the supreme court

held it grossly excessive and indicating passion and prejudice, even if exemplary damages had been proper. 11 Nev., 372.

In another case the plaintiff had been carried four hundred yards beyond his station. The conductor refused to back his train, and the plaintiff was obliged to get off and walk back the four hundred yards on a muddy track, carrying a hand valise. No pecuniary loss was shown. On these facts the jury found a verdict for $4,500, which the supreme court of Mississippi, while regretting the "rigor” of the jury, refused to disturb. Railroad Company v. Hurst, 36 Miss., 660. So, in a case in Wisconsin, the defendant had a regulation setting apart one car for ladies. Plaintiff, finding no seat in the car assigned to men, entered the ladies' car, from which he was rudely shoved out on the platform of the car. This was held a violation of plaintiff's rights, and a verdict for $2,500 "compensatory" damages was sustained, the court saying that, though large, it evinced no passion or prejudice. Bass v. Railroad Company, 43 Wis., 645.

In the case of Railroad Company v. Brown, 17 Wall., 445 (§§ 204–7, supra), a verdict of $1,500 was given for putting the plaintiff out of the car for white ladies into that for colored, in which she made her trip safely. The verdict is affirmed, but the report does not show that the verdict was objected to as excessive.

On a very similar state of facts in Illinois a verdict for $200 was held not excessive, Breese, J., dissenting, and no actual pecuniary loss was shown beyond a trifling loss of time. Railroad Company v. Williams, 55 Ill., 185.

In the California cases of Pleasants, Turner and Tarbell, 34 Cal., 586, 594 and 616, in which the facts show fully as aggravated a case as the present, verdicts for $500, $750 and $500, respectively, were held excessive, and in the case of Tarbell, the worst of the three, a new trial was ordered unless plaintiff would take a judgment for $100.

Pearson v. Duane, 4 Wall., 605 (§§ 233-34, supra), was an admiralty case. Duane, banished by the vigilance committee, got aboard the Stevens at Acapulco, but before reaching San Francisco Captain Pearson put him aboard the Sonora and sent him back. The district court awarded $4,000. This was affirmed by the circuit court. On appeal the supreme court reduced the amount to $50. Duane was put off the Stevens without unnecessary force and without malice, and did not show any pecuniary loss resulting from that act. The act, say the court, was wrong, and Duane was entitled to "compensation" for the injury done him in putting him on board the Sonora. But as there was no malice or ill-will towards him, $4,000 was out of proportion to the injury received.

Cases might be multiplied indefinitely, if of any use, showing the different views taken as to the proper amount of damages in these cases. Much, however, depends upon the special circumstances of each particlar case. While they differ thus, they all agree in their statement of the general principles that the damages must be the legal and natural or necessary result of the injury; that in this class of cases, between the actual pecuniary loss capable of exact computation, and exemplary or punitory damages, there is a class of damages very much at large, not capable of exact estimation, but still resulting from the wrong done, and therefore properly called compensatory damages. The amount of these the jury fix upon a due consideration of the circumstances of the case; and unless the amount is so large as to indicate passion, prejudice or corruption, the verdict is not to be set aside. 2 Greenl. on Ev., secs. 253-5.

The wrongful act in the case at bar is free entirely of any malice or ill-will. The conductor thought he was doing right, though it turns out he was mistaken. Under these circumstances, $1,000 is so out of proportion to the injury received as to indicate passion or prejudice, or both, on the part of the jury. The $52.50 is the full amount of the plaintiff's actual loss in money. In addition to this, $100 would certainly be a liberal recompense for all damage sustained by the plaintiff as the result of the wrongful, though mistaken, act of the defendant in expelling him from the car as it did. There should be a new trial, unless the plaintiff elects to take a judgment for $152.50.

Ordered that a new trial be granted, unless the plaintiff, within fifteen days, enters upon the record of the judgment a remission of all the judgment except the sum of $152.50. And in case such remission in due form be made, that then an order be entered denying a new trial.

WIGHTMAN v. CITY OF PROVIDENCE.

(Circuit Court for Rhode Island: 1 Clifford, 524-531. 1860.)

Plaintiff was injured by a fall upon ice on the sidewalk of a public street. The facts are stated in the opinion.

Opinion by CLIFFORD, J.

Towns are required by law in this state to keep their highways safe and convenient for travelers, and, in case of neglect to fulfill that requirement, they were declared liable "to all persons who may in any wise suffer injury to their persons or property by such neglect." R. I. Stat., 1844, 321. Those provisions extend to cities as well as towns, and include the sidewalks in the city of Providence, as well as that part of the street more particularly designed for carriages and teams, in all cases where the sidewalks have been duly laid out and constructed according to the established regulations upon the subject. R. I. Stat., 1821, p. 181; City Ordinances, p. 58. Whether the obstruction was by snow, ice or any other material, it was held by the supreme court, in the case of The City of Providence v. Clapp, 17 How.. 161 (§ 804, supra), to the effect that it was incumbent on those charged with the duty of repairing highways to remove or abate the obstructions, so as to render the highway, street or sidewalk at all times safe and convenient for travelers, regard being had to the locality of the way and its use by the public for the purposes for which it was laid out and constructed. That rule is applicable to this case, as the same statute was in force at the time of the alleged injury to the plaintiff.

At the time the accident occurred the ice was several inches thick on the sidewalk. According to the testimony of the plaintiff the street at the place where he was injured had no curbstones, and the ice extended over all the sidewalk and across the street. That there was ice upon the sidewalk was not controverted by the defendants, but they attempted to prove that it had been rendered safe and convenient for travel by sprinkling ashes or sand upon the surface of the ice; and they proved that persons had been designated by the proper authority, whose duty it was to remedy the difficulty by such means as often as it occurred. But the testimony introduced by the plaintiff tended to show that the duty had been neglected, or that the work had been so imperfectly done as not to accomplish the object. Snow had fallen that morning to the depth of an inch or two, and the testimony introduced by the plaintiff was full and satisfactory that the sidewalk where he fell was very slippery. He passed down for some distance on the southerly side of the

street in that part of the same which is designed for carriages and teams. While so passing he met a stranger, who spoke to him and made inquiry for a third person; after answering that inquiry he stepped on the sidewalk, still pursuing his course down the street. It is a steep street leading into South Main street, and when within a short distance of the latter street he slipped and fell, which occasioned the injury described in the declaration. The account of the accident was that he slipped, and as he fell he caught his hand under him and crushed it very badly; another witness, who was present at the time of the accident, says he slipped, and as he fell he threw out his hand to save himself, and when the witness lifted him up he complained of his wrist and of being badly sprained in his body. Injury was done to the wrist, but the bones of the wrist were not broken. As described by the medical witnesses the bones of the hand were driven past the bones of the wrist or forearm, and two of the bones of the hand were broken. For a week or more he was confined to his room, and it was five or six months before he could feed or dress himself. He was a deputy-sheriff, and with a business, as he testified, worth nearly $1,000 a year; and it was twelve months before he was able to do much writing; and he also testified that he had not done business since the accident occurred. On re-examination he testified that he experienced severe pain for six or eight months, and that by spells the injury continues to cause pain to the present time. He also introduced evidence showing that the fracture was a bad one, and tending to show that it might occasion a permanent injury. On the other hand the defendants introduced several witnesses to show that the sidewalk was safe and convenient for travel, and that the earnings of the plaintiff were much less than $1,000 a year. During his closing argument reference was made by the counsel for the plaintiff to certain matters not proved in the case, and in regard to which no testimony had been offered or introduced. Objection was made to that course of remark by the counsel on the other side, and it was immediately checked by the court, and the jury were instructed to confine their attention exclusively to the evidence in the case.

8847. Excessive damages for personal injuries.

Excessive damages is the next ground of complaint, and the one on which reliance is chiefly placed in support of the motion. Courts of justice are always reluctant to interfere with the verdict of a jury on that ground in cases of this description, for the reason that the law affords no definite rule by which the precise compensation for the injury can be ascertained. Where a party sustains a loss by reason of a breach of contract he is entitled to a recompense, compensation or satisfaction equal to the injury actually received by him from the defendant; or, in other words, he will be placed in the same situation with respect to damages, so far as money can do it, as he would have been if the contract had been performed. Injuries to property, also, may oftentimes be estimated with equal exactness; and when unattended by any circumstances recognized by law as matters of aggravation the rule of damages is compensation, recompense or satisfaction for the injury received. Certain other actions of tort are necessarily governed by far more indefinite principles. Where the person or character is injured it is difficult, says Mr. Mayne, if not impossible, to fix any limit; and the verdict, therefore, is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires. Such cases, however, as the same author well remarks, are not