Millard v. . Brown

Morgar, J. It seems to have been assumed by the judge, in his charge to the jury, that the defendant excavated the cellar on his own premises for the purpose of erecting a store; and yet, on the trial, he excluded evidence tending to show that the excavation was lawfully made for that purpose. In this class of actions, where the right of the jury to give exemplary damages is conceded in a case of gross negligence or recklessness, it is always proper to inquire into the conduct of the defendant, so as to enable the jury to determine whether the ease is one which calls for such damages. *300 If the plaintiff may enhance the damages by showing circumstances of aggravation, surely the defendant may give such evidence as he has, tending to explain the circumstances which are relied on to aggravate the damages. It is believed that in cases of tort to the property, where there are no circumstances of aggravation, the rule of damages is the same as in cases of contract. When the injury is to the person, or character, or feeling, and the facts disclose fraud, malice, violence, cruelty or the like, damages may be given by way of punishment for the benefit of the community and as a restraint to the transgressor. (Mayne on Damages, 13 ; 92 Law Lib.) In my opinion, the judge should have allowed the defend-, ant to show the object of the excavation and the circumstances under which it had been left open for so long a time. This was proper evidence, to enable the jury to determine the character and degree of the defendant’s negligence, and whether it called for exemplary damages. I do not think the error of excluding the defendant’s evidence was cured by the judge’s^ charge. He told the jury that the defendant had the right to excavate where he did for building purposes, if he owned the land. But having excluded evidence tending to show that the defendant excavated the cellar upon his own premises for building purposes, the jury could not properly assume that the excavation was lawfully made for such a purpose. The delay from May to November was commented upon by the judge to the jury as furnishing evidence of gross negligence. The evidence to explain it should have been received, if the judge deemed such delay important as an element to enhance the damages. I am entirely satisfied with the rule laid down by the judge in respect to the duties of the defendant to make the excavation secure against accidents of this description, although I fail to understand precisely what is intended by the remark of the judge, that the. right of passage was superior to the defendant’s right to make the excavation. In my opinion the judge erred in excluding the .evidence offered to explain the circumstances under which the excava *301 tian was made, as well as the delay that subsequently took place, notwithstanding his charge to the jury seemed to concede all, or nearly all, that could be claimed under the evidence. The question put to the doctor, as to the effect of the injury, did not elicit much information, and was almost harmless in the result. It is very doubtful whether the question was admissible under any well-settled rule as to the admission of evidence of experts. The doctor had already answered that he did not know whether the elbow was fractured or not; and yet he is allowed to speculate as to the effect of a fracture which was not proved. Such an opinion should be founded upon observation and examination of the injured limb, and the doctor should speak from his own observation, and riot from a mere description of it by others who have seen it, without knowing whether it is fractured or not. But it is unnecessary to pass upon this point. ' A point is made by the defendant that this is not a case for exemplary damages. That, doubtless, depends upon the circumstances under which the defendant is chargeable with negligence. Negligence is a relative term, and I do not consider it entirely correct to say in the abstract that it furnishes ground for additional damages. If the negligence is of such a character as to amount to misconduct or recklessness, then I think it right for the jury to give exemplary damages, otherwise not. The judgment should be reversed and a new trial granted, costs to abide the event. All the judges concurring in the result; Judgment reversed. *302 ?