The only witness introduced by defendant on this question was the section boss, who testified that the track was in good and sound order, except that one of the cross-ties where the broken rail was fastened was decayed, but that it was not rotten. The broken portions of the rail were not produced on the trial Held, that the testimony established negligence on the part of the defendant, and a liability to the plaintiff for injuries received. Newman v. Alabama G. S. R. Co., 38 Fed. Rep. 819.

Exemplary Damages for Injuries to Passengers Arising from Negligence.The decisions of the courts concerning the liability of railroad companies for negligence in transporting passengers unaccompanied by any acts showing actual malice on the part of their servants, are not uniform. Thus, in Milwaukee & St. P. R. Co. v. Arms, 91 U. S. 489, where the plaintiff sued to recover damages for an injury caused by defendant's negligence in permitting two trains to collide, it was held that exemplary damages could not be recovered, when there was no proof that the injury was inflicted maliciously or wantonly; and it was also declared that gross negligence is a relative term, and means the absence of care that was necessary under the circumstances, but that the absence of this care alone, whether called gross or ordinary negligence, did not authorize the jury to give damages beyond the limit of compensation for the injury actually inflicted. In Wardrobe v. California Stage Co., 7 Cal. 119, where the injuries to a passenger were occasioned by the negligence of the driver of a stagecoach, it was held that the carrier was liable only for simple negligence, and that exemplary damages could not be recovered. So, too, in McKeon v. Citizens' R. Co., 42 Mo. 79, the plaintiff, a passenger, sued for injuries, and it was held that although the conduct of the driver might be willful and malicious and with intent to injure the plaintiff, and he might be liable to indictment for assault with intent to kill or some other criminal offense, his employer was not liable for his acts of willful or malicious trespass, and that he was only liable in compensatory damages for his negligence or his incapacity, or unskillfulness in the performance of his

duties.

In Ackerson v. Erie R. Co., 32 N. J. L. 254, the court seems to have adopted a modified view. The action was brought to recover damages sustained while traveling upon a railroad by reason of the carelessness and disobedience of the employes of the company; and it was held that as it appeared that the defendant had adopted all needful rules and regulations for the running of its trains and had employed competent persons, and the accident had only happened through the disobedience of the employes and their failure to observe the rules, the company could not be held liable for the failure of its servants in performing their duty. The court declared, however, that if the company, as such, were in fault, a different rule would be applied and it might then be liable in punitive damages. In Illinois Cent. R. Co. v. Hammer, 72 Ill. 347, it was held that a railway company cannot be held liable in punitive damages merely for the gross negligence of its servants, but that if it employed incompetent, drunken or reckless servants, knowing them to be such, or having employed them with such knowledge, retains them after learning the fact, or after full opportunity to learn it, the company is liable in exemplary damages. See also Cleghorn v. New York C. & H. R. R. Co., 56 Ñ. Y. 44; Beale v. Railway Co., I Dill. (U. S.), 568.

Same decisions support the view that punitive damages may he recovered where the negligence of the employes is grossly culpable. In Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, it was held that where the servants of the company were guilty of negligence so grossly culpable as to evince utter recklessness or disregard for the safety of the passengers, the company was liable. See also Alabama G. S. R. Čo. v. Arnold, (Ala.)

30 Am. & Eng. R. Cas. 546; Kentucky C. R. Co. v. Dills, 4 Bush (Ky.), 593, Williamson v. Western Stage Co. 24 Iowa 171. And where through gross negligence, there was a collision of a passenger and a freight train and the plaintiff was injured, an instruction that it was a proper case for exemplary damages was sustained, the court saying that it was a subject in which all the travelling public were deeply interested; that railroads had practically monopolized the transportation of passengers on all principal lines of travel; that there ought to be no lax administration of law, and that it would be difficult to suggest a case more loudly calling for exemplary damages. Hopkins v. Atlantic & St. L. R. Co., 36 N. H. 9.

In Maysville & L. R. Co. v. Herrick, 13 Bush (Ky.), 122, it was declared that exemplary damages may be awarded if the evidence shows gross negligence-in other words, the absence of slight care-and that it is not necessary to show the absence of all care, or reckless indifference to the safety of passengers, or intentional misconduct on the part of the agents and officers of the company; and it has been declared that a railroad company impliedly warrants that its engineers, conductors and other employes engaged in running its trains, are possessed of due skill, and competent and faithful, that it is liable under all circumstances for any injury occasioned by the misconduct, rashness or negligence of such person, and that exemplary damages may be recovered therefor. New Orleans, J. & G. N. R. Co. v. Allbritton, 38 Miss. 242.

But only in an extreme case will a railroad company be liable in punitive damages for the misconduct of an employe. Fisher v. Metropolitan Elevated R. Co., 34 Hun (N. Y.), 433. For injuries caused by the negligence of a servant while engaged in the business of the master within the scope of his employment, the latter is liable for compensatory damages, but for such negligence, however gross or culpable, he is not liable to be punished in punitive damages unless he is also chargeable with gross misconduct. Such misconduct may be established by showing that the act of the servant was authorized or ratified, or that the master employed or retained the servant knowing that he was incompetent or had formed bad habits and was unfitted for the position he occupied. Something more than ordinary negligence is requisite; it must be reckless and of a criminal nature, and clearly established, and corporations may incur this liability as well as private persons. Cleghorn v. New York C. & H. R. R. Co., 56 N. Y. 44. But railroad companies are not liable for punitive damages for the acts of their servants done under circumstances which would give no right to punitive damages as against the servant, had the suit been brought against him instead of the master. Hamilton v. Third Avenue R. Co., 53 N. Y. 25; Townsend v. New York C. R. Co., 56 N. Y. 295. When there is evidence tending to show gross negligence on the part of the defendant, the degree of negligence is for the jury, and an instruction that the plaintiff cannot recover exemplary damages invades its province and is properly refused. Alabama G. S. R. Co. v. Arnold (Ala.), 30 Am. & Eng. R. Cas. 546.

Where there is evidence tending to show that while the track was not in good condition, trains might be run on it at a slow rate of speed with reasonable safety; that the rules of the company required its employes not to run at a greater rate of speed than twelve miles an hour, and the train was running at a greater rate of speed and the wreck might have been caused thereby, an injury resulting from the violation of the company's orders as to the rate of speed, cannot be attributed to its gross negligence, indifference or disregard for the safety of its passengers, and it is not liable in exemplary damages therefor. The liability of a railroad company for exemplary damages for injuries to passengers depends upon its gross negligence, indifference or disregard for their safety, and it cannot justify the defective condition of its roadbed by proving that the earnings of the corporation

were insufficient to pay the operating expenses, and that no dividend had been paid to the stockholders. Texas Trunk R. Co. v. Johnson (Tex.), ante, p. 122.

The testimony showed that the railroad train upon which the deceased was riding as a passenger was thrown from the track, and that thereby the deceased received the injuries from which he died, but failed to show any unusual speed or want of care in the management of the train, or, by any direct evidence, the cause of the train's being thrown from the track. It disclosed as the only evidence of negligence on the part of the company the fact that some of the ties at and near the place of the accident were rotten, and it appeared that the company had a suitable and competent person in charge of the track at that place as section boss, and that he was from time to time and as fast as he deemed necessary for the safety of the track replacing the old and rotten ties with new and sound ones. Held that no case was shown for exemplary damages. Kansas Pac. R. Co. v. Cutter, 19 Kan. 83. But in Maysville & L. R. Co. v. Herrick, 13 Bush (Ky.). 122, it was held that exemplary damages might be recovered under the Kentucky statute allowing the recovery of such damages in cases of gross negligence when the evidence showed that a railroad company failed to use such diligence in keeping a bridge in repair as careless and inattentive persons usually exercise in the preservation of the same, or of business of like character.

It has been held that punitive damages cannot be recovered when the negligence charged is the failure to sufficiently light depot grounds; Alabama G. S. R. Co. v. Arnold (Ala.), 35 Am. & Eng. R. Cas. 466; or the permitting of ice to remain upon a station platform; Seymour v. Chicago, B. & Q. R. Co., 3 Biss. (U. S.), 43. Where the injuries were caused by the overturning of a street car, it was held that exemplary damages could not be recovered; Louisville & P. R. Co. v. Smith, 2 Duv. (Ky.), 556; nor when they were caused by a street car upon which plaintiff was travelling being started before allowing her sufficient time to alight. Augusta & S. R. Co. v. Randall (Ga.), 34 Am. & Eng. R. Cas. 439. On a rainy day when the track was slippery, defendant's engineer in charge of a freight train, uncoupled cars loaded with coal whilst standing on a side track. In consequence of the uncoupling and of neglect to block or to turn the switch, two cars collided with an approaching passenger train, and plaintiff's injuries were caused without fault on his part by jumping from the train to avoid the effects of the collision. Held that the case was not one for exemplary damages. Spicer v. Chicago & N. W. R. Co., 29 Wis. 580. Where the evidence showed that a stage company sent a driver who had never driven over the road before, on a very dark and stormy night, that he got out of the road, and for that reason ran over a large stump, causing the coach to upset suddenly, a verdict, finding the defendant liable in exemplary damages on the ground of gross negligence, is sufficiently sustained. Williamson v. Western Stage Co., 24 Iowa 171.

Plaintiff's injury was caused by a train running into a river through the open draw of a bridge a few minutes after six o'clock in the morning. The bridge tender, it was shown, could neither read nor write, but it was not made to appear that the accident was in any degree attributable to that fact. Evidence tending to show inattention on the part of the engineer was also given. The court charged the jury: "If you find from the evidence that the conduct of the engineer or the conduct of the railroad company in the employment of a bridge keeper who could neither read nor write, amounted to such a reckless indifference to human life as to constitute wilful and malicious conduct, then you may be justified in giving exemplary damages." Held error. Brooks v. New York & G. L. R. Co., 30 Hun (N. Y.), 47.

MOAKLER

V.

WILLAMETTE Valley R. Co.

(Oregon Supreme Court, November 18, 1889.)

Passenger Contributory Negligence-Arm on Window Sill.-Where a passenger was riding on a car with his elbow resting on the window sill, and slightly projecting out of the window, but his hand and wrist were inside, and a stick of cordwood fell from the pile corded or stacked near the track, through the open window at which he sat, striking in the palm of the hand, or near it, catching in the mouth of the coat sleeve, and jammed the arm backward, and injured it, held, that the facts were not such as the court could decide to be negligence in law by allowing a nonsuit, but were for the jury.

APPEAL from Circuit Court, Multnomah County.

C. H. Carey and Mitchell & Tanner for appellant.

C. J. McDougall for respondent.

Case stated.

LORD, J.-This is an action brought by the plaintiff to recover damages for an injury alleged to have been caused by the negligence of the defendant while he was a passenger on one of its trains. By his answer the defendant denied the negligence alleged, and averred that the negligence of the plaintiff contributed to his injury. To this the plaintiff filed his reply, and, issue being thus joined, the trial was proceeded with until the plaintiff rested his case, when the defendant, by his counsel, moved for a judgment of nonsuit, upon the ground that the evidence showed that the plaintiff was guilty of contributory negligence, which the court allowed, and from which the present appeal is taken. Explanatorily, it may be said that the evidence showed that large piles of wood were corded, at places along the track, about one foot or a foot and a half from the cars, and so high that passengers often could not see out on account of it; that from one of these piles some of the sticks fell upon the cars, and through the window at which the plaintiff was sitting, with his arm resting on the window sill, causing the injury complained of. As relevant to the point upon which this case must be determined, it is necessary to understand how the injury occurred. Mr. O'Leary, a witness for the plaintiff, testified: "It hit him in the palm of the hand; that is where the wood hit him. It was not on the elbow. The elbow went up against the jamb of the window, and that is what hurt his elbow. (2) How was his hand?

Evidence.

Answer. Probably a few inches out of the window. The force of the stick and the car going, of course, hurt his elbow; that is what done it." On cross-examination, after testifying that the stick came through the open window, in reply to the question that the stick struck him "when his hand was outside," he says: "His hand was inside. It was the wood that hit his hand; it did not hit his elbow. Question. It pressed his hand back this way? Answer. Pressed it back against the window, and that is what hurt it-hand inside the window. Q. Elbow outside? A. Yes, sir; I think so. A. Yes, sir; I think so. Q. How far did the elbow extend outside? A. May be a few inches; I don't know." It will be noted that this witness first stated that the plaintiff's hand was "probably a few inches out of the window," but on his cross-examination testifies that it "was inside the window," and that the "elbow was outside " of the window a few inches. Looking at the whole of the evidence, and the manner in which he says the injury occurred, it was probably the elbow to which he referred; and this, too, is consistent with the testimony of the plaintiff, who succeeded him as a witness. After some preliminary matters, the plaintiff testified: "Q. Now, you may state whether or not any part of your arm was projecting outside of the car. A. No, sir; it was right on the window sill. Q. You say that this falling stick of wood caught in your coat, and jerked your hand out? A. Sitting just like here, [explaining by reference to witness-box;] stick struck just here, [referring to the mouth of his coat sleeve,] and pulled it out," etc. "I was this way: Train going this way; arm on the window right here. The first thing I knew, a piece of wood, coming in, grabbed my coat sleeve in the mouth of it, something like here, and just pulled my arm out, and got jammed backwards," etc. "Q. Your arm was resting on the window? A. Resting on the window. [Evidently means resting on the window sill.] 2. Was your elbow out three or four inches? A. Two or three inches-may be four inches? Q. Caught in the palm? A. No, sir; in the coat sleeve, and pulled right out."

It will be observed that both witnesses agreed that the hand was inside, and that the elbow was outside, of the window; that the stick of wood which did the injury came through the open window, and one says struck the palm of his hand, and the other, caught in the mouth of his coat sleeve; but both agree that the stick did not hit the elbow and as to the manner it operated in jamming the arm backwards and producing the injury. The plaintiff's testimony is that his arm was resting on the window sill, but that no part of his arm was outside of the car, although he admitted it was outside of the window. This must be based on the idea that the