where there was no fraud, malice, or oppression in the taking or detention of the property its value at the time of taking must be the standard," and this [say the court] is a rule of law, to be de clared by the court."

In Southern R. R. Co. v. Kendrick, 40 Miss. 374-390, it s said, that "a neglect of duty, not attended with any circumstance of insult, of aggravation of feeling, of injury to the person a property, of bodily or mental suffering, would not justify vindi tive damages; yet if there be any evidence tending to show sud circumstances, its weight and force rest peculiarly within the decretion of the jury."

We are prepared to go a step further and say that in any and al actions for damages where the proof fails to show anything that will warrant an imputation of wilfulness, recklessness, or rudenes, it is the duty of the court to inform the jury, when requested so to do, that they cannot inflict punitory damages.

Not to do so, in a case free from doubt, would be an abdication of judicial authority, and a permission to the jury to violate the settled principles of law.

In 2 Thompson on Negligence, 1264, it is said that "whether a not the case is one which justifies exemplary damages, is a ques tion for the court to determine, in its instruction to the jury," and the following among other cases bear out the author's statement: Chicago v. Martin, 49 Ill. 241; Heil v. Glanding, 42 Penn. S. 493; Kennedy v. N. M. R. R., 36 Mo. 351; Ill. Cent. R. R. 2 Welch, 52 Ill. 184.

The point was squarely met and decided by the Supreme Cour of the United States in Milwaukee R. R. Co. v. Arms, 91 U. S 489, in which the lower court had charged the jury that "if you find that the accident was caused by the gross negligence of de fendant's servants controlling the train, you may give the plaintifi punitory or vindictive damages." The Supreme Court after examining the facts, came to the conclusion that there was no proof of gross negligence in the case, and reversed the judgment because of the giving of this instruction. See also the note appended to this case, giving the ruling of Mr. Justice Davis on this subject on the circuit.

In N. O. and J. R. R. Co. v. Bailey, 40 Miss. 406, an instruction was approved, which declared that "any negligence by a railroad company, operating by the dangerous and powerful agency of steam, well deserves the epithet of gross." This ruling though based on and borrowed from the language of Justice Grier in Philadelphia R. R. Co. v. Derby, 14 How. 486, is manifestly un

sound.

Gross negligence is synonymous with recklessness, and has frequently been said to be undistinguishable from fraud. If the announcement therefore was sound law, every act of negligence on

the part of a railroad, no matter how slight, would justify the imposition of exemplary damages, and thus we destroy at once that distinction between carelessness and wilfulness which this court has recognized in numberless suits against railroad companies.

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Judge Tarbell said, in M. and C. R. R. Co. v. Green, 52 Miss. 783, that as against a common carrier punitive damages might be inflicted for a mere omission of duty, by way of punishment for the neglect of duty to travellers," citing 2 Redfield, section 182. This is an entire misconception of Judge Redfield's text. He was discussing the duty of a common carrier to transport all wellconducted travellers, whether the party suing had a special contract for transportation or not, a duty imposed by reason of his functions as a common carrier; a doctrine, by the way, which found a somewhat vivid and striking illustration in this State in the case of Hiern v. M'Caughn, 32 Miss. 17. This doctrine has nothing to do with the measure of damages to be inflicted upon the carrier for his derelictions of duty. It only fixes what that duty is towards the travelling public. For any dereliction of any duty he is to be dealt with as to the measure of damages like other

men.

The powers of common carriers over the persons and property committed to their custody is very great, and hence the law imposes upon them the severest exactions, and a degree of responsibility unknown in other callings of life. But though these exactions are more numerous and stringent, a non-performance of them brings to the delinquent just that which a default of duty brings to all men, that is to say, full compensation for thoughtlessness and carelessness; exemplary punishment for recklessness, wilfulness, or insult.

For error in giving plaintiff's second and fifth instructions, and in refusing defendant's second, the judgment is reversed and a new trial awarded.

AMANDA E. TRIGG, RESPONDENT,

v.

ST. LOUIS, K. CITY AND N. R. R. Co., APPELLANT.

(Advance Case, Missouri. October Term, 1881.)

Plaintiff with her two children was carried past the station to which she was bound. The conduct of the conductor was courtieus and respectful. Held, that a verdict for $1000 was excessive.

HOUGH, J.-In August, 1876, the plaintiff was at Norborne, in Carroll County, Mo., with her two children, one being four and the

other between one and two years of age; and, desiring to go to Hardin, in Ray County, she purchased a ticket entitling her to be carried from Norborne to Hardin on one of defendant's pas senger trains. The train she took was the defendant's west-bound day train between St. Louis and Kansas City, which usually ar rived at Hardin in the evening, between sundown and dark. The material allegations of the petition are substantially as follows:

"That she delivered her ticket to the conductor of the train, who was the agent of and in the employ of defendant.

"That said conductor had full knowledge that she was to get off at Hardin. That it was the duty of said conductor to stop said train at Hardin a sufficient length of time to permit plaintiff to get off at said station, but that, instead of stopping said train a reasonable length of time for plaintiff to get off at said station, he carelessly and negligently started almost instantly upon stopping, and gave no assistance to plaintiff to get off. That she was not able to get off, and was exposed to great danger by the starting of the train, encumbered as she was with her children and baggage, and that, in consequence thereof, she was carried to Richmond and Lexington Junction, in the county of Ray, about six miles from

said station of Hardin."

The defendant's answer denied all negligence on its part, and averred that it was in consequence of plaintiff's own negligence that she failed to get off said train at Hardin station.

The facts developed at the trial were as follows:

When the train arrived at Hardin, the plaintiff, being encumbered with considerable baggage and two small children, got to the platform of the car and handed out her luggage, but before she could hand one of her children to the person who was there to help her off the train started. The brakeman seeing her situation and thinking she was about to step off while the train was in motion, stepped in front of her and prevented her from doing so. This, he says, he did, because he thought she would fall under the train with her children. The brakeman then pulled the bell-cord to give the engineer a signal to stop, but the bell-cord was caught, so that the engineer did not get the signal. By that time the conductor had arrived, and, finding out the trouble, he sent the brakeman through the train to tell the engineer to stop, but, by the time the brakeman got to the engineer, and the engineer had stopped the train, it was some distance from the depot. The conductor then asked plaintiff if she would get off there, and she said she would not, and demanded that he should take her back to the depot at Hardin; the conductor testified that he told her that, after passing over the road, he had no right to go back, and that he was afraid to do so, for fear of running into something.

The testimony of the plaintiff on this point was as follows: "After a few moments the conductor came back to me and said,

'We have carried you past your station-what will you do about it?' I said, 'You will have to carry me back.' He said, 'he could not do it,' and turned off. I thought he spoke very sharp. After we had gone to the trestle-work below the town, the train stopped and the conductor said, 'We will put you off here.' I said, "No; if you had stopped within a reasonable distance I would have got off.' It then night. He then said, 'I cannot do any better than to carry you on to the Junction.' I said, 'If that is the best you can do you will have to carry me there.'

was

The conductor then told her that they would soon be at the junction, and that, when they got there, he would have the porter come and carry her child to the waiting-room, and that he would meet her there. The conductor went to the waiting-room and asked her what was to be done, and she said he would have to get a conveyance to take her back to Hardin, and thereupon the conductor went and got a light spring wagon in which to carry her back, but she refused to go in it, saying she wanted a "hack." The conductor told her he could get nothing better than the spring wagon. Mr. Hughes, a bystander, then advised her to go back on the freight train, but the conductor told her the freight train was behind time, and advised her to go back in the morning on the passenger. The conductor then took her and her children to the dining-room, and gave them, as she says, a good supper, for which he paid. He then told the landlady to give them a good room, and she gave them the best in the house, for which he also paid. He then gave the plaintiff fifty cents with which to pay her fare back to Hardin, which was only six miles from junction and went on with his train. It afterwards appears that at the request of plaintiff's father, the defendant's section boss at Hardin got out his hand-car and went to the junction, and that plaintiff got up and returned with them of her own accord, and without any expense, to Hardin, on the same night.

As to the measure of damages, the court instructed the jury, at the request of the plaintiff, as follows: If the jury find for the plaintiff, in assessing the damages, they will take into consideration the delay to which plaintiff was subjected, the anxiety and suspense of mind suffered by her in consequence thereof, the physical hardship to which it subjected her, and the effect upon her health in consequence thereof, and the danger to which she was exposed consequence of the train being stopped an insufficient length of time, and will find such sum and amount as the jury may lieve the plaintiff is justly entitled to from the evidence, not to exceed the sum claimed in the petition. The jury found a verdict for plaintiff, and assessed the damages at one thousand dollars, and judgment was rendered accordingly.

in

be

We are all of opinion that the judgment should be reversed, because the damages are excessive.

The evidence sufficiently supports the finding of the jury that the defendant was negligent in carrying the plaintiff beyond her destination, but as the case is utterly barren of circumstances of aggravation, such as malice, insult, wantonness, violence, oppres sion, or inhumanity, the damages awarded are so utterly disproportionate to the injury inflicted, that we feel called upon to interfere. It is true the plaintiff testified that when the conductor told her he could not take her back, she thought he "spoke very sharp."

But taking this statement in connection with the subject of conversation and what he actually said, and viewing it also in the light of his subsequent language and conduct, we take it to mean only that the conductor was very positive, and as the action which the plaintiff proposed was such as involved, perhaps, not only her own safety, but the safety of all the passengers on the train, it was a matter about which he probably expressed himself with emphasis. Every passenger, and especially ladies unattended by an escort, have a right to expect and receive ordinary civility from all the servants of a railroad company, with whom they are necessarily brought in contact, and if there is any deviation from this standard it should be on the side of courtesy; and if we were of opinion in this case, that the language or manners of the conductor connected with the negligence complained of bordered upon indignity or insult, we would not hesitate to let the verdict stand.

The instruction as to the measure of damages was erroneous. Neither the anxiety and suspense of mind suffered by the plaintiff in consequence of the delay, nor the effect upon her health, nor the danger to which she was exposed in consequence of the train being stopped an insufficient length of time, were proper elements of damage in this case, as no personal injury was received by the plaintiff, and no circumstances of aggravation attended the wrongful act complained of. If the anxiety and suspense of mind suffered by the plaintiff in consequence of the delay in this case is a ground of recovery, similar suspense and anxiety of mind would be an equally good ground of recovery in a case where a railroad train should wrongfully stop to take on a passenger.

The general rule is that "Pain of mind, when connected with bodily injury, is the subject of damages; but it must be so connected in order to include in the estimate, unless the injury is accompanied by circumstances of malice, insult, or inhumanity." Pierce on Railroads, ed. 1881, 362; I. B. and W. Ry. Co. v. Birney, 71 Ill. 391; Vide also Hobbes v. L. and S. W. Ry. Co., 10 L. R. Q. B. 111; P. P. Car Co. v. Barker, 7 Col. 377; Francis v. St. Louis Transfer Co., 5 Mo. Ap. 7.

If anxiety and suspense of mind are not a ground of recovery here, of course the effects are not.

There is no evidence that, as a consequence of the defendant's