Chicago, St. Louis & New Orleans Railroad v. Jarrett

Cooper, J., delivered the opinion of the court. Suit was brought by the appellees to recover damages sustained by the killing of their stock by one of the trains of the appellant. The evidence on the part of the appellant taken alone showed no negligence on the part of its employees, and no witness for the appellees saw the killing. Whether the circumstances of the killing show negligence on the part of the agents of the appellant depends to a considerable extent upon the character of the night in which the killing occurred, the rate of speed at which the train was running, and the grade of the road at the place of the occurrence. The witnesses for the appellant testified that it was a dark, foggy night, and because of its character the engineer was unable to see more than fifty yards in front of his engine. On the other hand the witnesses for the appellees state that the night was not extraordinarily dark, and one witness states that he saw the headlight of the engine at a distance of nearly a mile. The engineer and other servants of the company testified that the train was running at a speed of from twelve to fifteen miles per hour, and that when the stock was killed the road descended in the direction the train was moving. On the other hand, the witnesses for the appellees state that the road at this point ascended at a grade of about forty feet to the mile, and that the velocitj'- at which the train was moving was such that after having struck and killed four horses and mules, and after some of the wheels of the locomotive had thus been thrown from the track and the brakes applied to the cars composing the train, it ran a distance of four hundred and forty yards. The stock [473] killed was valued at prices ranging from five hundred to six hundred and fifty dollars. The lowest value was fixed by one of the appraisers called in by the plaintiffs soon after the occurrence, and the highest by the testimony of one of the plaintiffs himself. The verdict of the jury was in favor of the plaintiffs and fixed the damages at the sum of seven hundred and fifty dollars, and the counsel for the plaintiffs remitted one hundred dollars of the amount upon a suggestion by the judge who presided that the verdict was excessive. The amount of the verdict was evidently caused by the fourth instruction given on the application of the plaintiffs by which the jury were told that they might award exemplary damages if they believed from the evidence “ that said stock was killed through the wilful and wanton negligence or misconduct of its (the company’s) agents and employees in charge of said train.” A careful examination of the evidence satisfies us that under the rule announced in the case of Chicago Railroad Co. v. Scurr, ante, 456, this instruction should not have been given. It is said, however, by the counsel for the appellees, that, if it be conceded that it was error to grant the instruction, the error has been cured by the remittitur entered in the court below, because the judgment as entered is not for a sum greater than the value of the stock killed as fixed by some of the witnesses, and therefore, if a verdict for compensatory damages only would have been permitted to stand, the judgment ought to be affirmed. The answer is, that we cannot say that the jury would have found a verdict for the amount of the judgment, if it had been restricted to finding compensatory damages only; for the extent of such damages was fixed by the different witnesses at sums varying from five hundred to six hundred and fifty dollars. We cannot say whether one hundred dollars, the amount remitted, was the amount of punitive damages intended to be given, or whether the value of the stock was fixed at the lowest figure, five hundred dollars, and two hundred and fifty dollars was awarded as exemplary damages. There is nothing in the record furnishing any light to guide us in the inquiry, and a decision of the question would be based upon mere conjecture. Where erroneous instructions have been given, which may [474] have influenced the jury in finding the amount of the damages assessed, the burden is devolved upon the party in whose favor the error was committed to show that the amount remitted includes all the damages which could have been awarded under the erroneous charge. In this case the jury would not have been authorized, under the testimony, to have found for the plaintiffs, and awarded a less sum than five hundred dollars, that being the lowest estimate of the actual damages inflicted. If such verdict had been found, we could not have said it was clearly wrong, and therefore if the appellees will remit all in excess of that amount a judgment may be entered here. Judgment reversed.