given, Mr. Justice Campbell said: "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." But as nothing of this kind, under the evidence, could be imputed to the defendant, the judgment was reversed. In Railway Co. v. Arms, 91 U. S. 489, the bill of exceptions disclosed this state of facts: Mrs. Arms, in October, 1870, was a passenger on defendant's train of cars, which, while running at a speed of 14 or 15 miles an hour, collided with an engine on the same track. The jar occasioned by the collision was light, and more of a push than a shock. The fronts of the two engines, however, were demolished and a new engine removed the train. This was all the testimony offered by either party as to the character of the collision, and the cause of it, but there was evidence tending to show that Mrs. Arms was thrown from her seat, and sustained the injury of which she complained. After the evidence had been submitted to the jury, the court gave them the following instruction: "If you find that the accident was caused by the gross negligence of the defendant's servants controlling the train, you may give to the plaintiff punitive or exemplary damages. Mr. Justice Davis, delivering the opinion of the court, said: "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 further, 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.” . . To do this, however, 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. In the case at bar the facts are few and simple. The plaintiff, who was a boy of 13 years of age, relates the occurrence thus: "There were two cars coupled together, and it was coming along, and I jumped on the first one. I halloed out my papers, and it was pretty near Third Street. There was a wagon coming along. I did not want to jump off, for fear the wagon plary dammight run over me. I stood on the bottom step. People wanted to get on. The conductor shoved me on the arm, and turned me around, and I fell between the two cars. I fell on the ground, on my side, I think; near the track; Evidence ex amined-Not a case for exem ages. His between the track and the crossing, I guess. I fell between the two of them (the wheels). I was standing like this, on the bottom step, and he pushed me in this way (indicating), and I turned right around, and fell between the two cars. It was the hind car that ran over me." Mr. Kathatine, in corroboration, says he saw the conductor raise his arm as if to push the boy off; but whether he touched him or not, he could not say. Mr. Haley says that there was a wagon passing, and the conductor put his arm out, and pushed him; that the boy held on to the rail, then dropped his grip, and fell under the wheels. On the contrary, the conductor testifies that he did not push the boy off, nor intend to do so; that he did not touch him at all,-and in this he is supported by several witnesses. The jury has found, however, that he did push him off; that in consequence thereof the injury occurred; and our further consideration of the case must proceed upon the presumption of the fact thus found. But was the act accompanied by circumstances which would characterize the conductor's conduct as wilful and wanton, reckless or oppressive? Jones was the conductor of the car. duty was to clear the way for the exit and entry of the passengers without unreasonable delay. The plaintiff, while privileged to enter and leave the car, was there by the conductor's permission only. He was standing on the lower step of the car, which was approaching the crossing, and there were passengers at the crossing, who wished to enter the car. The conductor, without rudeness, and with proper care that the boy should receive no injury, had a right, as soon as the car should stop, to hasten the little boy's exit, in order to facilitate the admission of the passengers. There had been no previous ill will on the part of the conductor towards the boy. There was not an unkind word spoken. All that appears is that the conductor pushed him "on the arm." Whether this push was a gentle or violent one; whether it was given in anger or wantonness, or merely as a suggestion that the lad must make way for the passengers, is not shown. There is nothing to show that the conductor intended to push him off, or, indeed, to do the boy any harm. The mere fact that he pushed him on the arm does not indicate that the act was wanton or malicious. There are no circumstances, we think, which would justify a jury in finding that the act was wanton and wilful, or that the conductor was moved by any feelings of violence, outrage, or reckless indifference to consequences. For all that appears, we might well suppose that the conductor, in the effort to despatch his duty, was wholly unconscious of the fact that he pushed the boy on the arm. There can be no justification, of course, for In the negligent act of pushing a little boy off a moving car, and for the consequences of such an act the unoffending party will ordinarily be held to compensate the injury. But whether he will be also punished for the act must depend upon the manner, or the motive, in which the act is done. the retrial of this case care must be taken also that the plaintiff shall not be allowed to recover for any matter or thing to which his father may be entitled, in any action pending or to be brought, for damages resulting to him from the same injury. The judgment is reversed and a venire facias de novo is awarded. STERRETT, J., being of opinion that the instruction as to exemplary damages was fully warranted by the evidence, dissents. Who are persons "engaged or employed on or about the roads," etc., within Pennsylvania Statute.-See Pennsylvania R. Co. v. Price, 1 Am. & Eng. R. R. Cas. 234; Cummings v. Pittsburgh, etc., R. Co., 4 Ib. 524. Recovery of Exemplary Damages for Torts of Servants.--See Lake Shore, etc., R. Co. v. Rosenzweig, 26 Am. & Eng. R. R. Cas. 489; Western & Atlantic v. Turner, 28 lb. 455, and note, 458, where cases are collected. AUGUSTA AND SUMMERVILLE R. Co. v. RANDALL. (Georgia Supreme Court.) Passenger-Personal Injuries-Evidence--Res Gesta.-Statements made by a passenger after she had fallen in alighting from a car, had recovered herself, obtained the driver's name, gone home, and then gone to her sister's house, cannot be received as part of the res gesta, even under the Georgia statute, which declares that declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or after-thought, are admissible in evidence as part of the res gesta." Same-Instruction-Remote Damages.—In an action for damages for injuries to a female passenger, in which the only evidence introduced referred to the injuries she sustained and to a miscarriage or abortion caused by, and great pain suffered in consequence of the injury, an instruction that "if the damages are only the imaginary result of the tortious act, or other and continuous circumstances preponderate largely in causing the injurious effect, such damages are too remote to be a basis of recovery against the wrong-doer; and damages traceable to the act, but not its legal or material consequences, are too remote or contingent," is properly refused. Same-Punitive Damages. An instruction in an action to recover for personal injuries, that the facts in evidence to authorize punitive damages must be such as would subject the defendant's servant to liability to conviction for criminal negligence if prosecuted therefor, is properly refused. Same Presumption of Negligence Statute Constitutionality. A statute which declares that in all cases where passengers are injured the presumption shall be against the company, being simply declaratory of the common law, is not a statute abridging the privileges and immunities of a citizen in violation of U. S. Const. Art. 14. ERROR to Superior Court, Richmond County. Action to recover damages for personal injuries. The defendant appeals from a verdict and judgment for plaintiff. The opinion states the case. F. H. Miller, W. K. Miller, and F. S. & W. T. Davidson for plaintiff in error. Twiggs & Verdery for defendant in error. BLANDFORD, J.-This was an action brought by Hattie A. Randall and her husband to recover damages against the Augusta & Summerville R. Co. for injuries which she alleged she had sustained by reason of the Case stated. negligence of the servants of the company in throwing her from one of its cars, thereby injuring, wounding, and bruising her, and causing her great pain and suffering. A verdict was had for the plaintiffs in that action, in which the jury assessed her damages at $1000. A motion for new trial was made by the street-railroad company on various grounds. Verdict not 1. The first ground of error is that "the verdict is contrary to the evidence, and the principles of justice and equity. We think there is nothing in this ground. There contrary to was enough evidence, if the jury believed the tesevidence. timony of the plaintiff, to have authorized this verdict; and we do not see where the principles of justice and equity have been violated in the finding of the jury. DepositionAnswers from memoranda. 2. The next ground is that "the court admitted in evidence, over the objections of defendant's attorneys, the testimony on the cross-examination of Miss Keener, consisting of the contents of an ex parte affidavit read to the witness bodily, but not annexed to the deposition, and not before the court, or accompanying or offered as an accompaniment to this testimony; the ground of objection at the time of the examination being as follows: That all testimony referring to this paper (which was identified by the witness, and marked Exhibit A') should be excluded, unless such paper should be delivered to the commissioner by counsel for plaintiffs, and annexed to the deposition; counsels for plaintiffs contending that the testimony of the witness in relation to such paper should stand as a part of the deposition, and declining to deliver up the paper. These objections were renewed on the trial as to this testimony; and an inspection of the paper, which had been called for under notice, demanded that the court might determine the force of the objection. All of which objections were overruled, and the paper was not produced, or ever placed in evidence, by the plaintiffs; and the evidence was admitted, over said objections, without inspecting the paper." To understand this ground properly: The defendant sued out a commission to take the testimony of Miss Keener. Counsel for the plaintiffs and for the defendant both appeared before the commissioner, in the manner provided by the Code, and examined the witnesses orally, instead of by written interrogatories. On crossexamination, counsel for the plaintiffs put to the witness the question if she had not made a certain affidavit, and thereupon read to her the affidavit, the contents of which were taken down by the commissioner, and fully set out in the deposition, and returned to the court as a part of the testimony of the witness. Counsel for the defendant, who had sued out the commission, objected to this testimony, on the ground that the affidavit must be annexed to the return made by the commissioner. The objection was founded upon section 3887 of the Code, which says that witnesses may write out their own answers in the presence of the commissioners, and by their consent; and, if the witnesses answer from written memoranda, such memoranda shall be sent with the commission, and the fact certified by the commissioners. We think the learned counsel mistake the application of this rule. It clearly does not apply in a case of this kind, where the affidavit was read to the witness, and was fully set out by the commissioner, and the witness examined as to whether she made it, etc. We think that was all the law required should be done. The plaintiff in error, therefore, can take nothing by this exception. of plaintiff's 3. The fourth ground is of a more serious character. It is as follows: "Because the court admitted in evidence, over the objection of defendant's attorneys, on direct examination, and after Mrs. Randall had testified, as Admissibility a part of the res gesta, the statement made by Mrs. declarations Hattie Randall to her friend and relative, Mrs. as part of Shellman, who resided at a distance of a block and a half from the place of the accident, and opposite her own residence, and to whose house Mrs. Randall went after first going to her own home. The whole of this testimony ap res gestæ. |