#### Rueping, Respondent, vs. Chicago & Northwestern Railway Company, Appellant.

*January 14*

February *24, 1903.*

*Railroads: Negligence: Personal injuries: Master and servant: Gross negligence: Punitory damages: Compensatory damages: Appeal: Prejudicial error: Measure of damages: Excessive damages.*

1. Where a person is liable in compensatory damages for personal injuries wrongfully inflicted by bis servant while in the performance of duties as such servant, the principal cannot be visited with damages by way of punishment without proof that he directed the wrongful act to be done, or subsequently affirmed it.

2. In an action for personal injuries wrongfully inflicted by defendant’s servant while in the performance of his duties as such servant, in the absence of proof that the principal has authorized or ratified the wrongful acts, proof of the degree of negligence, as to whether ordinary or gross, is improper and should not be submitted to the jury.

3. In an action for personal injuries inflicted by defendant’s servant while in the performance of his duties as such servant, where actionable negligence is admitted, and there can be no punitive damages, because the principal did not authorize or affirm the wrongful act of the servant, evidence of the circumstances of the injury are irrelevant and immaterial, unless of such special nature as to present, as one of the elements of compensation, sense of wrong or insult arising from an act apparently dictated by a spirit of wilful injustice, or a deliberate intent to vex or degrade.

4. In an action against a railroad company for personal injuries-caused by a collision, actionable negligence was admitted-*626Punitory damages could not be recovered because negligence of defendant’s servants was not shown to have been either authorized or approved by it. Plaintiff’s counsel throughout the trial made contentions (with which the rulings of the court were in harmony) that the defendant was guilty of gross and criminal negligence; that mere compensation to plaintiff, in view of the enormity of defendant’s fault, would be inadequate, and appealed to the jury to fix compensatory damages with regard to defendant’s ability to respond. *Held,*that although the jury found there was no gross negligence, the erroneous admission of evidence of gross negligence was prejudicial error.

5. In an action for personal injuries suffered in a railroad collision it appeared, among other things, that plaintiff, a man forty-five years old, engaged in office work, suffered a compound fracture of his leg below the knee; that there was no evidence of great pain, or of probable future suffering; that recovery had been rapid; that he was able to attend to his business substantially as before, and that his only permanent difficulty was a looseness in the knee joint, permitting a slipping outward as the weight of the body was thrown upon the imperfect limb. *Held,*that a verdict for $12,000 damages was largely in excess of what was warranted by the evidence and the law, and that a new trial should be granted unless plaintiff remitted all damages in excess of $2,500.

Appeal from a judgment of tbe circuit .court for Fond du Lac county: Michael KibwaN, Circuit Judge.

*Reversed.*

Action to recover for personal injuries. Tbe claim of tbe plaintiff was that, June 24, 1900, be was a passenger on defendant’s excursion train on tbe way from tbe city of Fond du Lac to tbe city of Green Bay in tbe state of Wisconsin; tbat tbrougb gross negligence of defendant’s servants wbo controlled tbe movement of said train it collided witb one of defendant’s freight trains, by reason whereof plaintiff was severely injured; tbat bis injuries consisted of a severe shock to tbe system, both bones of bis right leg being transversely fractured from tbe knee down, tbe nerves and muscles of bis body, particularly those of bis right leg, being injured, and bis being put to great pain and permanently physically impaired, to bis damage in tbe sum of $15,000.

*627The answer admitted that plaintiff was injured at the time alleged by ordinary negligence of the defendant, 'but denied that it or its servants were guilty of any greater degree of fault than mere failure to exercise ordinary care. It put in issue the extent of the physical injury and the amount of the damages alleged.

There was no allegation in the complaint that defendant -was at fault except in that its servants failed to exercise proper care. There was no allegation that it authorized their conduct or ratified it. The allegations as to gross negligence went no further than to charge that the servants of defendant, while in pursuit of their ordinary business of managing the excursion train and the freight train, were grossly negligent. In the opening address of plaintiff’s counsel to the jury he treated the subject of gross negligence as the all-important one to be dealt with by them, and in a manner well calculated to inflame their minds with prejudice against the defendant on account of guilt in operating its trains on the occasion in -question with reckless disregard of human life. He stated clearly that the difference between the claim of plaintiff and that of defendant, as regards the mere question of liability, was respecting the degree of its fault, — whether it was merely guilty of ordinary negligence or was guilty of gross negligence. Defendant’s counsel, in his opening address to the jury, took issue with plaintiff’s counsel as to there being any ■question of gross negligence in the case. He insisted that there was on trial merely a case of accident from ordinary negligence, where the fault was freely- admitted, and the only •question for decision was the amount that should be awarded plaintiff as compensatory damages. He. suggested that there was no-disposition on his side to escape payment of any part of such, sum as in the judgment of the jury, guided by the evidence and the law applicable thereto, should be deemed necessary to fully compensate plaintiff for his loss; that de*628fendant desired tbat plaintiff sbonld receive Ms full legal measure of damages.

Upon tbe trial plaintiff’s counsel was permitted, against objection, to introduce evidence at great length upon tbe subject of defendant’s negligence, and particularly to establish the claim that its servants were guilty of gross negligence. Defendant’s counsel insisted from the beginning to the end of the trial that, since defendant freely admitted its liability for ordinary negligence, — the only degree of fault actionably charged in the complaint,' — evidence other than to aid the jury in coming to a correct conclusion respecting the amount of money necessary to compensate plaintiff for the injuries received was improper’. Plaintiff’s counsel, though pressed by defendant’s counsel to make his position plain before the court, in order that the court might rule intelligently upon the objections to evidence, did not distinctly claim that a recovery could be had under the complaint for gross fault. During the discussion of the various objections language was indulged, in at great length by plaintiff’s counsel to the effect that defendant was guilty of criminal negligence and that plaintiff was entitled to damages by way of punishment.

The court, by the rulings made at all points during the trial in respect to the subject of gross negligence and permitting the conduct of plaintiff’s counsel indicated, allowed him to succeed in placing before the jury evidence to sustain his claim that the defendant’s servants, in the handling of the passenger train and in directing its movements, were guilty of gross negligence. When the case was ready to submit to the jury there was no fact in issue on the pleadings in controversy on the evidence in a way to charge defendant with legal liability. The only disputed questions were whether plaintiff was permanently injured, and the amount of money that should be paid to compensate him for his loss.

The case was submitted to the jury for a special verdict The first two questions covered the controverted matters men*629tioned. Tbey were followed by six other questions covering various elements of actionable negligence, ordinary and gross. Instructions were given in respect to each of such questions. Tbe jury found for tbe defendant as to tbe claim of liability for gross negligence, answered tbe questions respecting ordinary negligence in favor of plaintiff and assessed bis damages at $12,000. Judgment was entered on tbe verdict in plaintiff’s favor. All matters referred to in tbe opinion that follows were preserved for review by proper exceptions.

*Edward M. Hyzer,*for tbe appellant.

For tbe respondent tbe cause was submitted on tbe brief of *Edward 8. Bragg.*

Maeshall, J.

Tbis case from first to last was tried upon a wrong theory. Counsel for appellant was clearly right in his position that upon tbe pleadings tbe only questions for decision by tbe jury were these: (1) Are tbe plaintiff’s injuries permanent ? (2) What sum of money will compensate him for bis loss ? Those questions, with proper explanations to enable tbe jury to understand their scope and tbe legal principles governing tbe same, would have covered all tbe matters required to be solved to settle tbe controversy between tbe parties. It may be that tbe learned counsel for plaintiff really supposed that bis client was entitled upon correct legal principles to show all tbe circumstances of tbe accident. It may be that be did not consciously lead tbe learned circuit judge astray by bis attitude, suggesting expressly or by implication that under tbe pleadings respondent was entitled not only to show gross negligence on tbe part of defendant’s servants, as bearing on tbe question of compensatory damages, but for tbe purpose of charging appellant with punitory damages, notwithstanding there was no claim in tbe complaint or in tbe evidence that defendant authorized tbe acts complained of or ratified them. However, it would be a reflection upon tbe distinguished counsel for respondent, which *630we hardly feel justified in suggesting, to treat this case as if he was misinformed in respect to the fact that the settled judicial policy of this state is to the contrary, and has been for some over forty years. While if the duty devolved upon us now to demonstrate the correctness of such policy, tested by principle and authority, it would not seem to be a specially difficult task, we shall not enter into any discussion thereof, since the matter has been settled by a long line of adjudications of this court. In *Milwaukee & M. R. Co. v. Finney,*10 Wis. 388, decided in 1860, it was held that though a person is liable for compensatory damages for injuries wrongfully inflicted by his servants upon another while in the performance of their duties as such servants, the principal cannot *‘be*visited with damages by way of punishment without proof that he directed the wrongful act to be done or subsequently affirmed it; that without such authorization or ratification the degree of negligence, as to whether ordinary or gross, has no proper place in the controversy as to the measure of the plaintiff’s right to redress and should not be submitted to the jury.’ The same principle, so far as applicable, ruled *Bass v. C. & N. W. R. Co.*36 Wis. 450; *S. C.*42 Wis. 654; *Craker v. C. & N. W. R. Co.*36 Wis. 657; *Eviston v.*Cramer, 57 Wis. 570, 15 N. W. 760; *Patry v. C., St. P., M. & O. R. Co.*77 Wis. 218, 46 N. W. 56; *Mace v. Reed,*89 Wis. 440, 62 N. W. 186; *Robinson v. Superior R. T. R. Co.*94 Wis. 345, 68 N. W. 961; *Bryan v. Adler,*97 Wis. 124, 72 N. W. 368; *Gaertner v. Bues,*109 Wis. 165, 85 N. W. 388. In all the later decisions of the court such principle was deemed so firmly established that a mere reference to the previous adjudications was all that was deemed necessary in applying the same. In *Robinson v. Superior R. T. RCo.*this language was used:

> “This court has repeatedly held, in effect, that exemplary damages can only be recovered against the principal for the *631wrongful and malicious act of the agent, when such act is either authorized or ratified by the principal.”

In *Gaertner v.*Bues, this language was used:

> “There is no finding that such acts were authorized or ratified by the defendant. Without this, there can be no recovery as and for punitory damages. Such damages are given only by way of punishing the malice or oppression, and are usually graduated by the intent of the party com-, mitting the wrong. When the action is against the principal' for the act of an agent, the question of their assessment cannot properly be submitted to the jury, unless there is evidence connecting the principal with such intent on the part of the agent.”

Counsel occupied considerable space in his brief in arguing that a principal is responsible for the negligence of his agent in the pursuit of his duties resulting in a.n injury to another, and therefore that, necessarily, on principle and authority, all the circumstances attending the act may properly be shown in an action to recover for the wrong, whether the proper measure of damages be such as will merely compensate such other for his actual loss or the jury be permitted in their discretion to allow an additional sum by way of punitory damages. True, a principal is responsible for gross negligence under the circumstances stated. That is supported by all the cases cited. But not responsible for more than compensatory damages without the element of authorization or ratification by him. The measure of damages is the same without such element, whether the degree of fault be ordinary or gross negligence. So, in such case, the circumstances of the injury are entirely immaterial where actionable negligence is admitted, unless they are of such special nature as to present, as one of the elements to be compensated for, sense of wrong or insult arising from an act apparently dictated by a spirit of wilful injustice or a deliberate intent to vex or degrade. It is held'that mental suffering of that character is a proper subject for compensatory damages (Grace *v.*Dempsey, *75**632Wis. 313, 323, 43 N. W. 1127; *Duffies v.*Duffies, 76 Wis. 374, 386, 45 N. W. 522); that all mental suffering, coupled with physical injury — that form which springs merely from insult or wilful wrongdoing as well as that caused by physical pain — is in a proper case a legitimate subject to be considered in awarding compensatory damages. The cases holding generally that the circumstances attending the infliction of an injury in an action to recover compensation therefor are material regardless of whether liability is admitted, are not universally restrained by the language of the opinion within their legitimate limits. It seems that it needs only to be suggested that evidence of gross negligence, where there can be no punitory damages as matter of law, or damages for mental suffering caused otherwise than by physical injury, is irrelef-vant; that it is liable to be prejudicial where, in the very nature of things, it is plain that there was no mental suffering induced by insult to be compensated for. Counsel calls our attention to the opinion of Mr. Justice Davis in *Milwaukee & St. P. R. Co. v.*Arms, 91 U. S. 489, where this language is found:

> “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.”

An examination of the entire opinion will show that the materiality of intention which the court was talking about was in respect to whether the defendant was liable for puni-tory or only compensatory damages. As an abstract proposition it seems too elementary to warrant any very extended discussion, that as regards any element of compensable injury except mental suffering caused by insult or something of that sort, the intent of the wrongdoer neither enhances nor *633mitigates tbe loss. There was no attempt here to recover for any such element. The circumstances of the case show that no such element entered into it. Therefore, there was clearly no justification for presenting the subject of gross negligence to the jury for consideration.

"We cannot, in justice to the learned circuit judge who presided at the trial and the distinguished counsel for respondent, omit to notice *Lawson v. C., St. P., M. & O. R. Co.*64 Wis. 447, 24 N. W. 618, to which counsel refers us. The opinion there, taken as it reads, justifies the conduct of the trial. However, it seems that no such effect should be given to the case. There was no claim in the; complaint there of liability for gross negligence. The essential allegation to support such a claim was wanting. There was no proof offered or received, so far as we can discover in the report of the case or the printed matter used upon the argument, suggesting gross negligence. There was no element of injury of a com-pensable character that would not have existed regardless of whether the fault of the defendant was ordinary or gross negligence. Yet, the trial court, misconceiving what constitutes gross negligence — not understanding that it requires actual intent to injure, or that disregard of human life or of consequences evincing a willingness to produce harmful results, sometimes called intent in law and equivalent to intent in fact *(Ryan v. La Crosse City R. Co.*108 Wis. 122, 83 N. W. 770; *Milwaukee & St. P. R. Co. v.*Arms, 91 U. S. 489) — • directed the jury to convict the defendant of such fault because, as was said, the evidence established it, and the measure of damages was no greater than would have resulted from •ordinary negligence, the degree of fault admitted in the answer. The error was not harmful, because there was nothing in the case upon which the court predicated his decision tending by reason of the ruling to enhance the recovery, and the jury were distinctly restrained, in assessing the damages, to .•such compensation as would fairly remunerate the bene*634ficiary of tbe cause of action for ber pecuniary loss. Tbis. language was used in deciding tbe case:

> “Tbe respondent was allowed to show tbe circumstances of tbe collision, against tbe objection of tbe appellant, in order to show that tbe servants of tbe company were guilty of *gross*negligence. According to tbe brief of tbe learned counsel of the appellant, fit made no difference in tbe case so long as defendant was negligent. If plaintiff showed herself otherwise-entitled to. recover, she could only be defeated by showing negligence on ber husband’s part.’ Tbis being so, proof of gross negligence was immaterial and could do no barm. But. we think proof of tbe accident and its circumstances was-proper, and that it justified tbe finding of gross negligence. Tbe negligence of tbe company was charged in tbe complaint and admitted in tbe answer, but its degree was an open question for tbe jury.”

Since, as tbe court said, in effect, whether tbe wrong of tbe defendant was characterized by tbe essentials of gross negligence was immaterial to tbe case, and ordinary negligence-was charged and admitted, rendering defendant liable for full compensatory damages to tbe beneficiary of the cause of action, and there was no other element of compensable loss involved than such as was of a distinctly pecuniary character, we must confess that tbe court was wrong in saying that tbe degree of tbe defendant’s fault was a proper subject for proof and for consideration by tbe jury. It seems that tbe furthest tbe court should have gone was to have said that, tbe liability of tbe defendant for tbe pecuniary loss suffered by tbe widow of tbe deceased being admitted and tbe jury having been limited in tbe assessment of damages to such elements, evidence respecting tbe circumstances of tbe injury was unnecessary, and, as regards mere degree of negligence, was error,, but harmless error.

We will say in passing that we do not lose sight of the-language called to our attention in *Bass v. C. & N. W. R. Co.*36 Wis. at page 462, to tbe effect that tbe mere inadvertent placing of a railway train in charge of negligent or careless. *635agents, or that any negligence by th.e agents of a railway company in charge of one of its trains, “may well deserve the-epithet of gross.” In view of the long line of decisions in this state regarding the essentials of gross negligence, it-would hardly seem that such language, quoted, as it was, from another jurisdiction, and used merely arguendo, should' be referred to as authority.

Counsel for respondent insists that if it was error to admit evidence of gross negligence of defendant’s servants and to try the case on the theory that defendant might be guilty of’ that degree of fault, it was not prejudicial error, because the-finding on that was in its favor, citing *Stone v.*C., *St. P., M. & O. R. Co.*88 Wis. 98, 59 N. W. 457. That would be true-if there were no indications in the record that defendant was-prejudicially affected notwithstanding. A universal rule cannot be predicated on *Stone v.*C., *St.*P., *M. & O. R. Co.*and. similar cases. The question of whether error of the sort in question is harmful or not must necessarily be determined very largely by the facts of each particular case.

The persistence with which counsel for respondent, from his opening address to the jury till the case was finally submitted to them, contended that appellant was guilty of criminal negligence and that mere compensation to'plaintiff for his loss would be inadequate to the enormity of its fault, and the extent to which rulings were made in harmony therewith,, could hardly have resulted otherwise than to unfit the jury to fairly consider and decide the vital issues in the cause. Such conduct of the trial went to an extraordinary length. A few excerpts from the record will amply show that. Speaking of the responsible officers of the defendant, who were entirely innocent of any criminal fault or moral turpitude, or personal fault at all, this language was used by the learned counsel:

> “If Puck were to publish a cartoon of these distinguished gentlemen in procession on that Sunday as they came from church — I have no doubt they were all at church — Wall street *636was not running that day — he would picture this long line of mourners and grievous characters with tears dropping down from their eyes, and put under it what they sometimes do to give point to the caricatures, ‘We wonder what this will cost.’ Then it will be left for anybody else to determine what they meant when they said, ‘We wonder what this will cost,’ and whether it was the tears that were shed for what it might cost, or whether the tears were shed because they had got caught once when it was apparent that they would be held responsible.”

The great wealth of the defendant and the amount of money damages requisite to be visited upon it in order that it might feel the smart of the legal lash and be conscious of the enormity of its offense, was treated in part thus:

> “These impositions by way. of fine for example’s sake, punishment’s sake, to operate as a warning to protect the body politic that travel to and fro, in this case over railroads — the ■same rule that applies outside of railroads applies here — correspond the punishment that you impose with the ability to pay the money that you impose and then you have an easy, graded movement — as easy as you ever can have — in fixing either compensatory or exemplary damages. . . . Now as a public example, in the way of punishment, how much more, how many more thousand in addition shall you give, so that when the blister is administered, it will draw. That is what we want for example’s sake and for punishment’s sake.”

Note the appeal to the jury to fix compensatory damages, having regard to the ability of the defendant to respond. What justification can there be suggested for conduct so cal'Culated as that to inflame and pervert the minds of an ordinary jury assembled to perform so simple a duty as that of -determining the money damages necessary to compensate for loss suffered; or for the use in addressing the jury of language like this respecting tho circumstances of the accident:

> “As I said to you, some were launched into the other world; others had legs broken or ribs broken; every ailment, very nearly, that could be inflicted upon them came upon them. They spent their summer in pain and misery; and be*637came tbence, some of them, as I think I shall show yon,. . . . crippled for life.”

Or this language in respect to the engineer who handled the train:

> “Ran in upon that engine, crashed there in its force and rebounded, one car telescoping into another, sending, as we have shown, five or six unshrived souls to their Maker, and left a large number, whatever that number may be, crippled for life.”

Pages might be covered in presenting a full history of the-trial with expressions of the same sort, tending to unfit any ordinary jury for doing justice in the case.

It is with much regret that we are, in the discharge of our dirties, required, as above, to give even a few glimpses of the' unhandsome features of the trial of this ease. It is to be regretted that counsel so distinguished should have so indulged his personal mastery of a situation as to lead so conscientious-a judge as the one who presided upon this trial so far astray. It is to be regretted that counsel will do that under any circumstances. > Counsel should never forget that they are of the instruments provided by law for the administration of justice, — officers, as it were, in the eye, of the law, charged with a high degree of responsibility respecting the protection of the rights of their clients within the legitimate boundaries-of the controversy they are called upon to present for adjudication, and charged as well with a high degree of responsibility not to purposely or negligently go outside such boundaries. Within that sphere they may, with all their learning,, ability and industry, present their client’s claim; but they will step outside thereof at the peril of sacrificing the very interests they are in duty bound to safeguard.

Er.om what has been said we must conclude that there was not a fair trial of this case. If it appears probable that the-verdict was enhanced thereby, the judgment must be reversed. The jury found for the defendant on the question of gross-*638negligence. That is a point in favor of tbe judgment. Iiow-.ever, as counsel for defendant suggests, there is a strong indication in the amount of the verdict that, while the jury acquitted defendant of gross negligence, they were ruled by the idea pressed upon them throughout the trial that damages •should be assessed sufficiently high to roundly punish the defendant when they came to assess the plaintiff’s compensatory •damages. The indications are that the idea of damages as mere compensation for loss sustained was too involved in ■their minds with the idea of punishing appellant to enable them to intelligently or dispassionately pass upon the vital -questions in the case.

The evidence as regards the nature of the plaintiff’s injury and the result was to the following effect: The large bone of the right leg below the knee was broken transversely downward. There was a displacement, giving the injury the • character of what is called a compound fracture. It was not .specially painful. Plaintiff recovered, so far as probably he • ever will recover, in a few months. He was forty-five years -of age when injured. His business was mainly office work. .He was sufficiently restored to enable him to attend to such business substantially as formerly. The restored limb is not .quite as strong as before. It is not wholly in its normal condition and never will be. The ligaments at the knee joint are •.so impaired that the joint is more than normally mobile. 'That permits a slipping outward as the weight of the body is thrown upon the imperfect limb. He is required, in using his limb, to use care and favor the impaired member. He 'has not full control of the limb because, as indicated, the ligaments of the knee are to some extent permanently relaxed. He testified that his only difficulty in using his limb was that

-there was a looseness in the knee joint permitting the leg *to*bow out about an inch as he threw his weight upon it, and •that it troubled him some in moving about.

*639Aii examination of the numerous cases that have come to this court furnishes clear indication that $12,000 for the loss .above indicated is far beyond what is legitimate. Plaintiff was not prevented from going about his customary affairs more than six months. There was no special circumstance distinguishing the injury from that of an ordinary compound fracture of one of the legs below the knee. 'There was no extensive laceration of the tissues of the limb. There was no extraordinary amount of pain suffered. There was a pretty rapid -recovery, and a complete healing of the wounds. The permanent impairment of earning power is not large. There is no evidence of reasonable certainty of future pain and suffering from the injury. The amount awarded is equivalent to an annuity sufficient to enable plaintiff, with an ordinary family, to live in ordinary circumstances during his natural life. The mere statement of that is sufficient to demonstrate that the verdict is unreasonable in a high degree. A reference to verdicts in other cases will be of some service in determining how far the one in question is out of harmony with what is reasonable; but there is, after all, no test to be applied but that of human judgment. An examination of a large number of cases fails to bring to our attention one where anywhere near as large a verdict as the one before us has been sustained for a similar loss. Instances may be found in our books where there was the loss of a leg, with suffering probably as great as that of plaintiff, and where there was as great or greater diminution of earning power, and the amount of compensation allowed was from $1,600 to $5,500. In *Karasich v.*Hasbrouck, 28 Wis. 569, there was a verdict for $5,500. The plaintiff, a man twenty-eight years old, had two ribs broken. One leg was so badly bruised and wounded that pieces of the bones subsequently worked out through the wound. He was confined to his bed for some days, was under a surgeon’s care for months, and was rendered permanently disabled, from following his usual occupation, and made rea*640sonably certain to suffer considerable pain for tbe rest of bis life. In *Duffy v. C. & N. W. R. Co.*34 Wis. 188, a strong,, healthy man sixty-four years of age was very severely and permanently injured, the injury leaving him to some extent a cripple for life. The amount of damages awarded was $1,600. In *McMahon v. Eau Claire*W. *W. Co.*95 Wis. 640, 70 N. W. 829, $5,000 was allowed for a severe permanent in-j’ury to a young man, a member of the city fire department. In *Cummings v. National F. Co.*60 Wis. 603, 18 N. W. 742, 20 N. W. 665, a middle-aged man was rendered helpless for life. The amount awarded to him was $8,000. In *Propsom v. Leatham,*80 Wis. 608, 50 N. W. 586, a. laborer in good health, with a good prospect of long life, was seriously and permanently inj’ured, one of his legs being broken, and after he was cured so far as practicable, the leg being left in a partially deformed condition, was awarded $1,800. In *McCoy v. Milwaukee S. R. Co.*88 Wis. 56, 59 N. W. 453, the sum of $4,000 was awarded for the loss, by a boy seventeen years old, of his left arm. In *Baltzer v.*Chicago, *M. & N. R. Co.*89 Wis. 257, 60 N. W. 716, a recovery of $10,000 was allowed for loss of the left arm of a boy nineteen years of age. In *King v. City of*Oshkosh, 75 Wis. 517, 44 N. W. 745, $600 was allowed to compensate a man for an injury causing considerable expense, loss of time, and a somewhat permanent impairment of earning power. In *Nadau v. White R. L. Co.*76 Wis. 120, 43 N. W. 1135, $9,650 was allowed for an injury to a strong young man. His leg was crushed and had to be amputated above the knee. These examples, though including cases of injuries quite dissimilar in kind to the one suffered by paintiff, furnish a pretty good index of the amount usually found necessary in the administration of justice, to compensate for pain and lost time incident to an injury and impaired earning power. We may well look, not so much to the particular nature of the injury in the cases, in comparing them with the one before us as to the magnitude *641of tbe elements of pain, loss of time, expense, diminished earning power, and tbe age of tbe subject Those cases strongly support our conclusion that tbe verdict of the jury here -was either tbe result of passion and prejudice or that tbe case was not intelligently considered by the jury; that they were swung away from tbe true basis for tbe assessment of damages by tbe errors we have discussed; that they thought as much or more of roundly punishing the appellant as of requiring it to make good to respondent tbe loss be sustained, upon a common-sense basis.

There being no controversy but that appellant is liable to respond for compensatory damages, this is a proper case for this court, upon reversing the judgment, to name a sum which the plaintiff may accept and terminate the litigation if he sees fit. We will do that, being guided by the rule that, since defendant is left with no option in the matter, in order to avoid invading its substantial rights as to a judicial assessment of the damages it should pay, the sum named must be as low as in any reasonable probability a jury of twelve men rightly instructed as to the law, and with a proper conception of their duty in the matter, would be liable to award. *Baxter v. C. & N. W. R. Co.*104 Wis. 307, 80 N. W. 644. It is our best judgment that the defendant ought not to be compelled under that rule to submit to the payment of more than $2,500. That seems small, compared with the verdict of the jury, but* unlike most cases where this court has been called upon to-exercise its power to give parties an opportunity to end their litigation without a new trial, the verdict furnishes here no sort of assistance. A jury might reasonably assess plaintiff’s damages as low as $2,500. They might, of course, assess the same somewhat higher. The range of human judgment in respect to such matters is quite large. It is a very difficult matter to set boundaries beyond which it cannot go. It cannot be done at all with any very great degree of certainty. The *642best tbat can be done is to apply unbiased judgment and experience to the evidence. We have done that with the result suggested. If plaintiff does not see fit to accept the amount .named, the way is open for him to appeal to another jury.

There is nothing further that need be said in this case. It 'is with much regret that we have been compelled to treat it as we have. We entertain a high regard for the learned, painstaking and conscientious judge who tried the case, and for the distinguished counsel who conducted the case for respondent. For the former, we can say it is but natural to lean somewhat for support in the course of a hotly contested trial, without time for reflection, upon eminent counsel, whose standing at the bar and whose large experience is an assurance against his consciously, or at all, proceeding to effect outside the legitimate boundaries of the case, especially in moving the judicial mind to the commission of error. But after all lawyers are not judges. Their sphere of action is different. However distinguished they may be, the only really safe way in any case is for the independent judgment of the judicial head of the court to dominate the trials. Counsel are liable to use all power they are masters of, if permitted, for the attainment of valuable results for their clients. The court must necessarily at all times himself control the scales of justice, keeping out those illegitimate makeweights that have no business therein, but which able counsel are liable, if not restrained, to throw into the balance upon their side of the case. The court can do that and still give counsel ample range for all their learning, ability and experience within the limits of the case, while repressing, and if necessary suppressing, excursions outside thereof.

*By the Court.*— The judgment of the circuit court is reversed. The cause is‘remanded for a new trial unless the plaintiff elects, by notice in writing served upon the attorney for the defendant within twenty days after the filing of the *remittitur*in the office of the clerk of the trial court, to take *643judgment for tbe sum of $2,500, with costs in such court subsequent to such filing. If such election be made, judgment may be rendered accordingly upon application therefor to such eourt.