The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1866-09-13

Of au injury that has resulted from his neg
lrct 81, John vs. Van SAINT yOgrd, d Hill,
N 50 ~ I,r Walworili, Chancellor
II il absolutely necessary 20 tho proper
management Of the Lnduths 81 such com
pany that there should he established rules
lor the government Of tbfit bushes. with
those who BIaY H. o0neefDr't ia III iol with
out them the operation Of tlo company would
be embarrassed, II not impratieable; and
the company has the power and must Of
necessity, cstabllsh snch regulati0nH rs are
reasonable f0r the mutual convenience Of
both parties aud not ia conflict with law
RedheId, - Aud il is the duty Of persons
dealing with them 10 take notice Of such
regulations.
II il manifest that the instruction under
consideration Is in opposition 20 these views,
aud could scarcely have failed TO mislead
the jury. in considering the evidence before
them Without expressing any opinion as
10 the weight Of that evidence, it is proper
10 sag, that there was evidence before them
tending 10 show that the Station was prop
crly announced by the Conductor, aud that
Mrs. kcndrick was asleep at the time and
therefore. did not hear ii and il the jury
believed this testimony, their verdict could
not properly have been for the plaintiff But
under the rule stated in this instruction it
was immatorial whether the jury believed
this To be the state of the facts or not, and
they were nevertheless bonnd TO find for the
plaintiff The instruction was, therefore,
material To the facts in evidence, and was
enormously given.
This error was not obyiatcd by the fourth
instruction given at the instance OF the de
PENDANT, In these words "If the Jury he
feve. from the evidence that the ears stop
ped 1T Newton station the usual length Of
time, aud the station was announced, then
the railroad company are not liable for the
PLAINTIFF failure TO get of. and they will
lind for the def ndmt"
II is remarkable that this instruction
states rule in direct opposition to that
stated in the first instruction given for the
plaintiff; aud we are unable "a perceive up
on what principle the learned judge i'm the
Court he low, could have Stated such OppO-
site rules to the jury in the same case The
jury were left to determine which Of the two
contrary rules they would follow, and it
would appear that they adopted the one
which is erroneous. II was not only error
to give the first instruction, but it was irreg-
nlar to give conflicting instructions, and
thereby, in effect, leave the jury without in
structians, TO guide them with reference TO
material question of law arising upon the
evidence in the cause #&gA
The SECOND instruction for the plaintiff, Is
as follows "In the assessment of dnniages,
the jury arD allowed, and indeed, it is their
duty, in such cases rs that of public carriers,
where the law provides no other penalty, 10
consider the interest of society as well as
justice to the plaintiff, and by their verdict,
whilst they make just compensation for the
private injury, also to inflict proper punish
ment for the disregard of public duty"
The instruction was, doubtless, intended
to be taken from what is said by this court
in New Orleans, jackson and Great Northern
Railroad vs. Hurst 30 Miss G6G Bnt the
rule stated in that case, has reference only
to eases of personal wrong and injury which
the jury considered of such character as
in their Judgment. TO call for the imposition
ofexemplary damages and it holds that, if
they SO consider it, from their right and
duty, in such cases to find such damages
There is no such qualification in this inStruc-
ton, hut it directs the jury that in suits
against the public carriers, Il was their duty
TO make Just compensation for the private
injury, and also 10 inflict proper punishment
for the disregard of public duty, in their as
scssinent of damages. Under this rule, the
jury were bound to find punitory damages,
If they found verdict against the road, al
though they might have considered that the
circumstances of the case did not Justify or
proper discretion over the subject, which is
the peculiar province Of the jury and the in
strnotiou, in its broad terms, was clearly
wrong.
The third instruction is in the language of
this Court in the case last cited, and was
properly given, and the fourth is but the le-
ultimate deduction from it,
In the sixth, the Court instructs the Jury
that If they believe the testimony of Mrs
l. .lu.., 1 !
that testimony was, they might find vindic- |
tive damages This was erroneous, in stat |
ing to the jury what the testimony of Mrs.
Kendriell was, that being a matter 10 DC de-
termned entirely by their Judgment. 10 |
should also have contained terms of qualiii- |
cation, that ,tndictiyC damages might be- |
found, Il IN their Judgment they thought that |
the facts us shown in evidence, rendered il |
proper to do so and the same qualification |
should have been added to the seventh in-
struotion.
The ninth instruction is in these words |
ANY failure TO discharge all these duties
imposed by the nature OF the office Ofcommon |
carrier amounts to gross aud wiliul miscOn-
duet, for which punitive damages may be
giveni and the fact that the general char
acter of the conductor, was that of faithful
ness, can in no manner shield the company
where positive wrong has been done"
The first branch of this instruction is mani
Testify wrong; for it is not every failure to
all the duties imposed by the ma
ture of the Office of the carrier, that will con-
stitute gross and wilful misconduct for
which punishment may he inflicted in dam
ages. Whilst 1t is true that the utmost dill
gence isrequired of them in the performance
Of their dnties there may be eases of failure
to do every thing incumbent on them which,
under the special circumstances, might he
partially eNcuseahle, and would clearly not
show gross aud wiliul misconduct in fact, OF
which from the slight andimmaterial nature
Of the wrong resulting from them, would not
Justify punitive damages. For example, if
the taking of the plaintiff beyond Newton
station, was miustiiable under the circuni-I
STAGES. and, upon the discovery Of il by the
he had bacled the train to the
station, with hut little delay to the plaintiff,
hat would have been failure to discharge
his duty; hut it could scarcely he said tn lie
a ease OF gruSs aud wilful misconduct for
which punitive damages should be inflicted
for the wrong.
A neglect of dnty, clearly not attended
with any circumstances of insult, of aggra-
yation of feelings, of injury TO the person or
his property or Of bodily or mental suffering,
would not Justify Tindctive damages; yet
{ there be any evidence tending to show
,urh circumstances. its weight and force
,ests partially In the discretion of the Jury,
whose verdictS, either in point of deteumin-
NJ the existence and weight of such facts
VI in awarding damages far the wrong, will
lot be disturbed. except when Il clearly APP
,ears that they are not Warranted 10y the
violence.
la the present case. we do not intend to