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Taylor v. Grand Trunk Railway Company.

tion, or the amount of its earnings; but having undertaken to carry passengers in that mode, its duty is to provide a track, rolling stock and all other agencies suited to the nature and extent of the business it proposes to do; and the measure of its care and diligence is to fluctuate with the changes in its revenues. A direction to the jury, therefore, that should make the degree of care required turn upon the pecuniary means of this particular road would be

erroneous.

The part of the charge particularly objected to is the direction that "defendants must use such degree of care as is practicable, short of incurring an expense which would render it altogether impossible to continue the business."

This might, and probably would, be understood to require of the defendants all practicable care to the extent of their means, which would make the ability of the corporation the measure of the care and diligence required, and that obviously is not the true test-and judging from other parts of the instructions it was not so intended --still the terms used are so explicit that there is reason to fear that the jury may have been misled, and induced to require as a standard a higher degree of care and diligence than the law actually demands. It would be quite likely to be so, if it appeared that the corporation was receiving a large income from this business beyond the expenses. If, on the other hand, it appeared that the receipts did not equal the running expenses, the jury might feel at liberty to exact a lower degree of care and diligence.

In respect to common highways it has been decided in this state hat the standard by which their sufficiency is to be tested is not to be expanded or contracted by the wealth or poverty of the town (Winship v. Enfield, 42 N. H. 197, 208); and we think the same rule is applicable to the proprietors of railroads. They are bound to keep them in suitable repair, and to operate them with suitable care and diligence, considering the character and extent of the use to which they are applied.

As before remarked, the passage under consideration is in terms much like the passage in 2 Redfield on Railways, 187; but upon a close examination of his statement it will not be found that the author intended to announce the doctrine that the degree of diligence was to be measured by the revenues of the particular railroad, but that in fixing a general standard of care and diligence there should not

Taylor v. Grand Trunk Railway Company.

be so much required as to render this mode of conveyance impracticable.

The objection to the passage in question now before us is, the danger that the jury may have understood tha: the defendants were bound to use all practicable care and skill to the extent of their means; and as we do not know that their means were not understood to be ample, we cannot be sure that the jury were not misled.

The jury in this case have found that there was gross negligence, and it might, perhaps, be urged that this finding shows that no harm was done by the instructions in question. We think, however, that, in determining what was gross negligence, the jury would naturally and properly be influenced by the degree of care and diligence which they supposed the law required; and if that standard was carried too high they might also come to a wrong conclusion as to what was gross negligence. We, therefore, are constrained to hold that in respect to the particular direction under consideration, the charge was erroneous.

It is urged, also, that there was error in the direction that defendants were bound to the utmost care and prudence of a very cautious person; but we think there was no error in this. It is not only in accordance with the doctrine of the elementary books, but is sus tained, as we have seen, by the general current of adjudged cases.

It is true that the terms used do not furnish an exact measure of the care required, but that difficulty is inherent in the nature of the subject. It has, however, this advantage, that it conforms substantially to the ordinary definition of the highest degree of care required of bailees of goods, and has therefore the sanction of long use.

In respect to exemplary damages, we consider the law to be well settled in New Hampshire in accordance with the instructions given to the jury, namely, that if they found that the accident was caused by the gross negligence of the defendants, they might, if they chose, give exemplary damages.

The same question was fully considered in Hopkins v. Atlantic & St. L. Railroad, 36 N. H. 9, and the conclusion reached that exemplary damages might be awarded in a case like this. This decision was in 1857, and, after a careful examination of the authorities on the point, we are fully satisfied with it.

In Whipple v. Walpole, 10 N. H. 130, the same question was considered, and the court held that if there was gross negligence the jury might award exemplary damages.

Taylor v. Grand Trunk Railway Company.

In Knight v. Foster, 39 N. H. 576, which was an action for slander, it was held that where actual malice is shown the jury may award exemplary damages, what the defendant ought to pay and the plaintiff ought to receive; and, in Symonds v. Carter, 32 N. H. 466, it was held that in an action for slander, increased damages may be awarded for the increased malice and malignity of heart attending the uttering of the words; and this is a recognition of the doctrine that the jury are not confined to the idea of mere compensation for the injury, but may award damages by way of punishment and example.

In Perkins v. Towle, 43 N. H. 220, it was held that in trespass quare clausum fregit, exemplary damages may be recovered when there are such circumstances of aggravation, of insult, and of malice, as would warrant such recovery in other cases.

Upon this review of the adjudged cases in our own state, we might be amply justified in saying that the question was no longer an open one here; but as the point has been made at the bar, we have examined the decisions elsewhere, and are satisfied that there is a great preponderance of authorities in favor of the doctrine adopted in this state.

This doctrine is denied by an eminent jurist. Professor Greenleaf, in his work on Evidence, volume 2, section 203, in an elaborate note, in which he reviews the authorities, and urges with great force and ability that, upon principle, damages should be a just compensation for the injury actually sustained, and neither more nor less; and that to allow a jury to award damages by way of example, and as a punishment for a wrong committed, beyond a just compensation for the injury done to the plaintiff, would be a departure from the true principles upon which damages are awarded, that is not countenanced by the authorities when fairly considered.

The position is that for the legal wrong done to the plaintiff the defendant is bound to make full compensation; but for the moral wrong, whether it rises to the character of an offense punishable by law or not, he is answerable to society alone; that it is especially unjust to allow the plaintiff to recover damages beyond a fair compensation for the injury by way of punishment for an offense for which the defendant is liable to be punished by a public prosecution, inasmuch as in that way he is liable to be punished twice for the same offense.

The views of Professor Greenleaf are also expressed in an article in

Taylor v. Grand Trunk Railway Company.

the Law Reporter of April, 1847. There is also an able article on the same side in 3 Am. Jurist, 287, by Hon. Thomas Metcalf, which seems to have taken the lead in opposition to the doctrine in question. On the other hand the subject is very fully discussed and the authorities reviewed by Mr. Sedgwick in his work on damages (4th ed.) chapter 18, page 454. In chapter 1, page 38, he lays it down that when fraud, malice, gross negligence or oppression mingles with the controversy, the law, instead of adhering to the system or the language of compensation, adopts a wholly different rule. It permits the jury to give what are called punitory, vindictive or exemplary damages; in other words, blends together the interests of society and of the aggrieved individual, and gives damages not only to recompense the sufferer but to punish the offender. See also Mr. Sedgwick's article on the same subject in Law Reporter of June, 1847, in reply to Professor Greenleaf. The general doctrine of Mr Sedgwick is supported by a great weight of authority. Chancellor KENT in 1 Com. (9th ed.) 627, says that it appears to him that the conclusions in Mr. Sedgwick's treatise are well warranted by the decisions, and that the attempt to exclude all consideration of the malice and wickedness and wantonness of the tort, in estimating a proper compensation to the victim, is impracticable, visionary and repugnant to the just feelings of social sympathy.

Mr. Parsons, in his work on contracts, volume 2, page 449, expresses an opinion that the courts of this country generally permit a jury in certain cases to give damages which exceed the measure of legal compensation, and are justified by the principle that one found guilty of so great an offense should be made an example of, in order to deter others from the like wrong doing.

In the United States courts the doctrine of Mr. Sedgwick is recognized. In Day v. Wentworth, 13 How. 363, GRIER, J., in delivering the opinion of the court, said: "It is a well-established principle of the common law that in actions of trespass and all actions on the case for torts, a jury may inflict what are called exemplary, punitive or vindictive damages upon a defendant, having in view the enormity of his offense rather than the measure of compensation to the plaintiff. We are aware," he says, "that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument." As suggested by PERLEY, C. J., in Hopkins

Taylor v. Grand Trunk Railway Company.

v. The Atl. & St. L. R. R., the allowance of exemplary damages to the suit of a private individual finds countenance in that legislative policy which, by giving pecuniary penalties to private prosecutors of certain offenses, seeks to enlist their aid in enforcing many salutary penal statutes.

That doctrine which allows a jury to award exemplary damages to the sufferer by wrongful acts which the public is strongly interested to punish, stands upon the same footing, so far, at least, as the damages are merely punitory; and it is quite obvious, we think, that this furnishes the most efficient, if not the only, means of correcting many very serious social abuses; and among these, that gross negligence which puts at unnecessary hazard the life and limbs of large numbers of passengers must take a high rank. It is not, therefore, to be regretted that the law has established an exception to the ordinary rule in respect to damages, and armed the sufferer in such cases with the powers to administer a corrective which cannot or will not otherwise be efficiently applied at all.

The doctrine is not the result of direct legislation, as is the case with qui tam actions, but we think it has become too firmly estab lished to be shaken without legislative action.

It has been contended that, however it may be in cases of fraud, malice and oppression, exemplary damages cannot be awarded for gross negligence merely. It will be observed, however, that it is otherwise settled in this state in the cases of Whipple v. Walpole, and Hopkins v. Atlantic & St. L. R. R., before cited. It is also the doctrine of Sedgwick, as before stated. In some cases it has been held that the negligence must be of such a character as to evince a wanton disregard of human life and safety, equivalent to malice, as in Pickett v. Crook, 20 Wis. 358; Wardrole v. Cal. Stage Co., 7 Cal. 118.

It has been held, also, that when the public wrong is punishable. criminally, exemplary damages ought not to be awarded, upon the ground that if it were otherwise the wrong-doer would be twice. punished for the same offense; and this is the doctrine in Massachusetts. Austin v. Wilson, 4 Cush. 273; and in Indiana, Wassauren v. Rickert, 18 Ind. 350; Humphries v. Johnson, 20 id. 190. On the other hand, it is held in New York in Cook v. Ellis, 6 Hill, 466, that in trespass for assault and battery the defendant shall not be permitted to prove in mitigation of damages that he has already been convicted and fined for the same offense, and has paid the fine.

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