Maxwell, J.:
This is an action to rec over damages for personal injuries to the plaintiff, appellee, while riding in one of the cars of the defendant, appellant. The points to be decided here are raised upon rulings of the court below during the progress of the trial. There was a verdict of $9,000 for the plaintiff, a motion for a new trial, which was denied, and thereupon comes this appeal.
The errors assigned are mainly included in the first — the refusal of the court to grant a new trial. Of the others, the second and third are abandoned; and of those remaining, [411] one is “ that there was no issue to be tried.” By this is meant that the pleadings show only a declaration and a plea of not guilty, without a joinder of issue by similiter. This court has decided that the absence of such a joinder is not good ground for reversing a judgment after a full trial and verdict on the merits, saying in its opinion, “ in the light of all the authorities we have been able to examine, our conclusion is that a similiter is not a substantive pleading, but is a mere expression of the acceptance of the issues tendered in referring the cause to a jury, and after final judgment, the similiter not having been insisted on by defendant, the omission is amendable even after error brought, and cannot be well assigned for error, the cause having been fully tried on its merits.” Huling vs. Florida Savings Bank, &c., 19 Fla., 695.
Another error not included in the motion for a new trial is, “ that plaintiff below failed to show any privity of contract between himself and defendant.” Not stopping now to consider the evidence relating to this point, it will appear hereafter from our conclusion on the whole evidence that we think it is not well founded.
Before the trial below, objection was made to certain interrogatories to Ií. J. Hammond, a witness for plaintiff, on the ground that they were vague, indefinite and uncertain, and do not show concerning whom the enquiries were made, and on the trial the reading of his deposition was objected to because those interrogatories should not have been allowed. One of the grounds of the motion for a new trial is that the court erred in not sustaining the objections to the interrogatories. The objections rest upon the fact that the interrogatories do not in themselves disclose to whom they relate. One is this: “ Int. 2. Has he ever been under your treatment ? How often, when and for what ?” The others are like this in not giving the name of the person [412] about whom the enquiries are made. The only interrogatory preceding the one quoted, asks the profession of the witness, and the length of time he had been practicing. But’ preceding that was the caption showing the style of the court and of the case (“ G-eorge W. Webster vs. The Florida Railway and Navigation Company ”), immediately followed by this statement: “ Interrogatories to be propounded to H. J. Hammond, a witness for the plaintiff in the above case, who resides,” &c. This gave some indication, though imperfect, of the person to whom the interrogatories referred; and upon reading the deposition we find that the witness was fully advised as to the person about whom he was testifying, going so far in answering an interrogatory not objected to as to mention him by name, and to speak of the railroad on which he received his injuries. We think where it clearly appears from the answers of a witness that he knows the meaning of the interrogatories he is answering, that his deposition should not be excluded because the interrogatories are defective from being vague and indefinite.
In its charge to the jury the court said: “ If you believe from the evidence that the plaintiff was in the car (stock car) in which he received his injuries in the discharge of his duties to his horses, and that he had no other opportunity to attend to that duty before that time, and that he had not had any safe opportunity to attend to that duty, before that time, and that he had not had any safe opportunity to get out of the ear previous to the accident after performing that duty, the fact of his being in the car cannot be considered as contributory negligence on his part.”
This is assigned for error, but we think without good ground, espseially when we find immediately following in the charge this alternative: “ If, on the other hand, you believe from the evidence that it was not necessary for the [413] plaintiff to be in the car, and he went there not in the discharge of any duty, and you believe he should have been in the passenger coach, and not in the car he was in, you must find for the defendant.”
That the charge of the court may be understood, we recite the facts, as shown by the evidence, up to the time when the plaintiff was injured on defendant’s road.
The plaintiff was moving by rail from Iowa to Florida, taking along two horses, a wagon and other personal effects. When he started from Iowa he was furnished a stock car for transportation, under a contract with the Chicago, Milwaukee & St. Paul Railway Company, by which he was bound to load, unload, feed, water and take care of his stock (the horses) at his own expense and risk; and in consideration of the payment made for transportation of his stock and movables, he was entitled to pass free over the road with his stock. This contract was for transportation over the company’s road to Chicago, but, in contemplation that the car would pass over other roads, it was “ agreed that when stock shall pass over more than one road to reach its destination, the company upon whose road any accident, loss or damage may occur, shall alone be liable, and no suit shall be brought, or claim made, against any other company forming a part of the route for such loss or damage.” In connection with the contract was a letter of the freight agent of the Chicago, Milwaukee & St. Paul Railway Company, as to rates to be paid by plaintiff for the car with its contents, from Banair (Iowa) to Jacksonville, Florida. At Chicago the plaintiff signed another paper which he did not read, not having time to read it, and he has not seen it since. He had a drover’s pass to Indianapolis, and asked for another there, but was told he would be passed without it. The car was attached to freight trains from the start until it reached Pensacola Junction, Ala[414] bama, and the plaintiff generally rode and slept in it up to that point. There it was attached to a passenger train, and when it reached Chattahoochee Junction (in Florida) it was shifted to a passenger train of defendant, and was with that train when the accident causing the injury to plaintiff occurred. At Pensacola Junction he was told by the conductor that he could ride on the passenger car or his own, as he pleased. At Uhattahooehee Junction, where his car was attached to defendant’s train, the conductor, who enquired if he was the man with the stock car, told him he could ride where he pleased. In both instances the permission to ride in the car of his choice was given in response to his enquiry, whether he could ride in the passenger car. When the train reached Tallahassee, about 6:40 a. m., he went from the passenger car to his own, to (feed his horses, and the train, which had stopped fifteen or twenty minutes, instead of the usual time, forty-five minutes, started before he got through, so that he remained in his car till the “ smash-up ” happened, about five miles from Tallahassee. The conductor was changed at Tallahassee, but plaintiff did not know it, and did not see the new one till after the accident.
Looking now to the charge of the court, the objection that the portion of the charge relating to plaintiff’s opportunity to feed his horses, and to get back to the passenger car, assumes facts not in evidence, is not justified either as to assumption or as to the evidence; and it would seem that if it were objectionable, it worked more against plaintiff than defendant, for it in effect announced a burden on plaintiff to satisfy the jury that he had not before had the opportunities in question. The court had in view the matter of contributory negligence, this depending upon the right of plaintiff to be in the car, in which his injuries were inflicted,. in discharge of duty to his horses, and upon his not [415] having neglected proper previous opportunity to discharge that duty or neglected to return to the passenger car when he had finished the feeding. There was evidence as to all these questions: on the question of duty, the contract which bound him to feed his horses, and on the question of opportunity, the hour of arrival at Tallahassee, 6:40 a. m.,in November the time of stoppage there, shorter than usual, the feeding not finished before the train started, and the short distance run before the accident. Whether the evidence was enough to relieve plaintiff from contributory negligence, was not indicated by any assumption of the court, but was left to the jury.
Other errors assigned are upon two instructions asked by defendant, which the court refused. The instructions are: 1st. “ If the plaintiff: saw fit to ride in a stock or freight car, when a safe passenger car was provided dor him, and was thereby injured, he took upon himself the perils of such car, and cannot recover.” 2d. “If the jury believe from the evidence that the plaintiff was injured while riding in a car, with some horses, on the road of defendant, and they believe from the evidence that he entered said car without the knowledge of the conductor then and there in charge of the train to which said car was attached, and if they further believe from the evidence, that the defendant had provided a comfortable passenger car for the use of plaintiff, which was then and there attached to said train, and if they further believe from the evidence that plaintiff would not have sustained the injuries complained of, if he had occupied the car as provided, then they must find a verdict for the defendant.”
These instructions could not have been without a misleading tendency on the minds of the jury. The main controversy was as to the right of the plaintiff on the car which was billed for his use from Iowa to Jacksonville, [416] Florida. Was there anything in the contract for the car, or in the circumstances of the case, which bound him to ride in the passenger car, whenever one was connected with the train to which his car was attached ? Or, if there was, were the circumstances under which he came to be on his car at the time of the accident such as to excuse his absence from the passenger car, and exempt him from a charge of contributory negligence ? These were vital questions in the case. But if the instructions asked had been given, there was nothing for the jury but to find for the defendant, if a passenger car was provided on which plaintiff could ride and the conductor was ignorant of his presence elsewhere — the instructions entirely ignoring any legal effect of facts growing out of his peculiar relation to the car provided for his exclusive use. We think the refusal to give the instruction was proper.
It is objected to the verdict of the jury that it is “ contrary to the law and evidence introduced at the trial.”
This brings up the question whether the disaster from-which appellee’s injuries came, was the result of negligence, on the part of appellant. Primarily, it was the duty of appellant to have a good, substantial and safe road-track for the use of its trains, and default in that duty where the detect was patent to common observation would be negligence. The evidence in regard to this is not very full, but the jury deemed it sufficient to show negligence, and weave not prepared to hold otherwise. It was found after the accident that a rail only ten feet long was out of its place— that the track was very bad — that the rails were much worn, and were of all lengths, while usually rails are thirty feet long. Evidently from this, the track was not in a condition answering the rquirements of a good, substantial and safe road.
Then comes the question of contributory negligence. If [417] appellee is to be considered as having been an ordinary passenger, with no responsibilities or duties except as such passenger, it is easy to see that he was out of place on any other than the car provided for passengers, and that he should be held to the consequences of contributory negligence. But was he an ordinary passenger ? Clearly not. He was traveling under a contract which gave him a car for the transportation of live stock and movables all the distance from Iowa to Jacksonville, Florida, under which it was made his business to “ feed, water and take care of” said stock, and under which he was entitled to pass free “ in actual charge of and accompany the stock.” Though this was a contract not made directly with appellant company, yet appellee and his car were received by said company while on the line to their destination, and in the absence of anything to show a different agreement, must be presumed to have been received for transportation under said contract. More than this, when the car was attached to the train ot appellant the conductor told appellee he could ride where he pleased. The change of conductors a short distance after the train got on its way makes no difference in the case. It is apparent, therefore, that the law applicable to ordinary passengers cannot be invoked to condemn appellee for not being in the passenger car when he was injured. See Lawson vs. The Chicago, St. P., M. & O. Railway Company, 64 Wis., 447. That was a ease similar to this, differing principally in the fact that in that the party who was to accompany and care for the stock was by the contract especially authorized to ride in the stock car. In this, if the authority to ride in such car was not implied from the terms of the contract, interpreted by the fact that from the start and along the greater portion of the distance no passenger was connected with the trains [418] which carried his, it was given by an agent of the company who had charge and control of the 'train. The conductor was the person to administer the rules of the company and apply them according to the circumstances. O’Donnell vs. Alleghany Valley R. R. Co., 59 Penn. St., 239; Alabama Great Southern R. R. Co. vs. Yarbrough, 83 Ala., 238; Kentueky Central R. R. Co. vs. Thomas, 79 Ky., 160. Independent of this, was the right of appellee to go into his car to feed and water his horses, so that even if ordinarily he should not have been there as a passenger, when a passenger car was at hand, this right justified his presence there on occasions and at places suitable for the performance of his undertaking and duty in respect to the horses.
Suppose then, we admit the contention of appellant that the proper place for appellee when the train was running, was in the passenger car, is there anything in the facts to excuse and justify his presence in his own car at the time he received his injuries ? The time was about the usual feeding hour, early in the morning. He had gone into his car to feed his horses at a place where the regular stoppage of the train was forty-five minutes; but after stopping only fifteen or twenty minutes the train started on its course, while he was still in the ear, his work unfinished. The disaster occurred when the train had run about five miles. It is not shown that in this run any opportunity was furnished for transferring himself to the passenger car, and presumably in so short a run there was no such opportunity. Thus we find him in his own car under circumstances in which it was reasonable and proper he should be there, not in fault in being there when he entered, and caught remaining there when, though another car was at his service, he could not help himself. It is hard to conceive that in such a state of facts he was subject to blame for negligence, and we think he was not.
[419] We hence conclude that the verdict of the jury, so far as the liability of appellant in damages for injuries to appellee is concerned, should not be pronounced by us to be contrary to the law and evidence in the case.
There remains to be considered the complaint of appellant that the verdict of the jury gave excessive damages. If the case is not one for exemplary, vindictive or punitive damages, the complaint would seem to be well founded; and we do- not think it is such a case. As we understand the rule, such damages are allowed only where there has been a wrongful intent to do injury, or where the injury is done wantonly or recklessly, or where, if not done intentionally, it is the result of reckless negligence. In the language of Sutherland on Damages (vol. 1, 724), “ they are allowed when a wrongful act is done with a bad motive; or so recklessly as to imply a disregard of social obligations; or where there is negligence so gross as to amount to misconduct or recklessness.” Ordinarily, where the injury has not been done with a bad motive, “ the person injured shall receive a compensation commensurate with his loss or injury, and no more.” Ibid, 17. And where the person is injured through negligence, and not purposely, the same rule of compensation should be observed, unless the negligence is of a gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects. The rule is thus expressed in Milwaukee R. R. Co. vs. Arms et al., 91 U. S., 489: “to authorize the jury to visit the company with damages beyond the limit of compensation for the injury actually inflicted, * there must have been some wilful misconduct, or that entire want of care which would raise the presumption of a conscious indifference to consequences.” In S. & W. Alabama R. R. Co. vs. McLendon, 63 Ala., 266, the court says: “ for an injury resulting [420] from mere negligence, only compensation can be recovered. But when the negligence is so gross as to show willfulness, wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, then punitive or exemplary damages may be awarded.” As expressed by others, see 1 Sedgwick’s Measure of Damages, 53; N. O., Jackson &c., R. R. Co. vs. Statham, 42 Miss., 607; M. & C. R. R. Co. vs. Whitfield, 44 Miss., 466; Caldwell vs. N. J. Steamboat Co., 47 N. Y., 282; Kennedy vs. North Mo. R. R. Co., 36 Mo., 351.
From these and numerous other authorities of like purport, it seems to be settled doctrine that in cases of injury to persons from negligence, only compensatory damages will be allowed, if there is not positive fault of the nature of recklessness.
There is some looseness aud confusion in the books in the use of the word “ wilful ” in connection with negligence, but in our view such connection involves a contradiction in terms, for if there is willfulness, that removes the case from the category of negligence, because then there is intentional wrong; and it is only when the negligence is marked by “ that reckless indifference to the rights of others which is equivalent to an intentional violation of them,”’ (91 U. S., supra,) or, in the lauguage of Sedgwick, by “ a grossly careless disregard of the safety and welfare of the public,” that the law holds the party to the same responsibility as if the offence were intentional, and will add exemplary to compensatory damages.
In the case at bar the only evidence of negligence was that some of the cars of the train ran off the track, that the witness “ found a rail out not more than ten feet long, and (he says) the track was very bad. The rails were much worn. There were rails of all lengths. Rails are usually thirty feet long.” While this shows a state of things that [421] justifies a charge of negligence, it cannot be said, in the absence of anything more to explain what is meant by the track being “ very bad,” that it shows recklessness in those whose duty it was to keep the track in proper condition. To say that the “ track was very bad ” was but the expression of an opinion, and cannot be taken as a fact unless the facts on which the opinion is based are given, and are of a character to warrant the opinion. What might constitute a “ very ” bad track in the eye of one person, might not in the eye of another. So far as the facts were given go, they are not sufficient of themselves alone to lead to so strong an opinion. Hence we do not think the case has the elements which call for exemplary damages.
Then, considering the verdict as one which should have given compensatory damages only, was it excessive ? If it was, the rule which ordinarily restrains courts from disturbing verdicts on the ground of excessive damages, has not the same application as in cases which authorize exemplary damages. In the latter, where courts will not interfere unless, as said in 3 Story, supra, “ in a clear case where the jury have acted upon a gross mistake of facts, or have been governed by some improper influence or bias,” or by passion or prejudice, the restraint comes from the fact that the law prescribes no measure of damages, but leaves it to the sound discretion of the jury. Yet, even in such cases, the courts do not always consider the restraint as absolutely binding on them. Wiggin vs. Coffin, 3 Story, 1; Chicago West. Div. Ry. Co. vs. Hughes, 87 Ill., 94; Spicer vs. Chicago & N. W. Ry. Co., 29 Wis., 580; Bass vs. Chicago & N. W. Ry. Co., 39 Wis., 636; McCarthy vs. Niskern, 22 Minn., 90; 42 Miss., supra; 1 Sutherland on Damages, 810-11. But in cases not calling for exemplary damages, and where legal rules regulate the measure of damages, as where compensation for the injury [422] furnishes the guide, the courts have less reluctance in setting aside verdicts, when these award damages found to be excessive.
Returning to the question of excess in this case, and considering it in the view of compensatory damages, what does that include? “ In an action for negligent injury to the person of the plaintiff, he may recover the expenses of his cure, the value of the time lost by him during the cure, and a fair compensation fbr the physical and meutal suffering caused by the injury, as well as lor any permanent reduction of his power to earn money.” 44 Miss., supra, referring to Sherman & Redfield on Negligence, section 603, Pierce on Railroads, 301, says: “ The damages for personal injuries include, and are limited to, the natural and immediate consequences of the wrongful act. They include irrespective of the defendant’s motive or conduct at the time of the injury, 1, expenses of surgical and medical attendance and nursing, 2, bodily pain, taking into account loss of time, the extent and probable duration of the injury, its effect on the health, the meutal aud physical powers, the capacity tor labor, the pursuit of an occupation aufi the earning of money.” These extracts express substantially the doctrine of all the authorities on the subject; and we proceed to apply it to this case.
As to the injury to appellee, there was a severe wound on the head, tearing away the flesh; his shoulder blade and ribs were broken, and he suffered, he says, as much as human could endure. “Since the accident my health has been somewhat impaired, and I cannot raise my hand without pain, and if I put it up often it hurts very much.” The physician who attended him says: “ After making an examination of him I found that his head received’ a large contused wound on the temple; that the right shoulder blade had been driven downward; that the * end of the [423] collar bone was displaced ; that the pectoral muscles were all contused and lacerated. These injuries were all on the right side. All the fixed ribs on the right side were injured, and some of them cracked. * * The parietal layer of pleura was also injured, which caused him great pain. All the muscles of the right shoulder were badly contused. * * The injury to the shoulder will be permanent, so that he will never be able to do any manual labor with his right arm. It cannot be cured by treatment. The other injuries were not of a permanent character.” ' After a month’s treatment appellee was able to travel, and left Tallahassee. Just before the commencement of this suit, three or four months later, another physician saw him, and after describing the injuries, says that appellee was “ unable to raise his hand above his head or use his right arm for any practical purpose, and suffering much pain. Later examination revealed gradual union and healing of the bi’oken bones, with a rigidity of the muscles. His health and strength have suffered very much from injuries received. Wholly disabled from manual labor (lasting effects) for a lifetime, (from) the deformities of the shoulder and ribs of the right side, and the rigidity of the muscles attached.”
Now, as to appellee himself prior to the injury, he was fifty-one years old, and in his testimony says : “ I was not strong before the accident. I would not say my general health was very good or very bad. * * Have worked at carpentering some. Was moving to Florida to raise oranges and start a nursery, having been engaged in raising small fruits in Iowa. Already had a place purchased and partly cleared. * * The year previous to the accident I cleared, with the aid of my son (14 years old) the sum of $600 during four months by raising and shipping [424] small fruit. These four months were the best part of the year.”
On this evidence the principal items of compensation are for pain and suffering, physical and mental, and for loss by reason of injury to capacity for earning money — other evidence relieving the case of expense of medical treatment and nursing, and the cost of board while under treatment, the appellant having paid these. From the very nature of the matter, it is not practicable to fix any definite scale for measuring the money damage to be awarded for physical and mental suffering, but it should be confined to compensation within reasonable limits, and not partake of the character of punishment on the party inflicting the injury. Inasmuch as some injuries cause more pain and suffering than others, the jury must be allowed some latitude of discretion in adjusting the compensation for the pain and suffering, to the facts of each case. In the present case we have no means of knowing how much the jury gave on account of this item, but taking the verdict as a whole, and allowing a liberal amount for this, we think the evidence as to other items too scanty and indefinite to authorize so large a verdict. As to appellee’s capacity to labor and earn money, no data are given except that the year before he came to Florida he, with the aid of his son, made $600 in four months from his fruit farm in Iowa. We infer from what he says, that those were the only money-making months of the year for that business. At any rate, he does not say that he made any more that year. No evidence is given relating to the money value of his labor in Florida, which was to be Mb future home ; and we have but few specific facts in the case to constitute a guide to the compensation which would be proper, even on the ground that his injuries have totally and permanently disabled him from earning money, which, however, he does not [425] himself say is the ease, and we are not satisfied from the evidence is the case. If we take his earnings in Iowa, as given above, as a guide, and make a calculation based on that, allowing nothing for the labor of his son, the verdict of $9,000 would result in giving him an amount, the interest of which, at eight per cent, only, would yield him annually more than his earnings did. And that would bring this further result, that as long as he lives he get3 each year in interest what will compensate him for his loss from inability to labor, and at the end of his life will still have the $9,000. But make a liberal deduction for other items properly entering into compensation for injury, the pain and suffering, and reasonable expenses of suit to recover, there would still be left an amount, according to our view, which, tested in the same way, would be seen to be excessive.
In a Texas case, Houston & T. C. R. R. Co. vs. Willie, 53 Texas, 318, the court says: “ If compensation for lessened ability to labor be assured as the true measure of actual damages, then it would seem that it should not be such sum as would bring an annual interest corresponding with the annual value of this lessened ability, leaving the principal sum still belonging to the estate of plaintiff after his death, although he had then become wholly incapacitated for labor; but would be an amount which would purchase an annuity equal to this interest, during the probable life of the plaintif, calculated upon a reliable basis of the average duration of human life.” We think this furnishes a good rule by which to measure the damages in such a case. But if the disability to labor is not total, the damages should be graduated to suit the extent of the disability. Though if total, the state of health of the person before the injury, considered in connection with the age, is [426] not to be overlooked in determining the probabilities of life.
Our conclusion being that the verdict should be set aside as excessive, yet instead of absolute reversal on that account, we will give the plaintiff the option to retain his judgment if he will enter in the Circuit Court a remittitur of $3,500, as of the date of said judgment. This course is in accordance with the practice in some other appellate courts, and we think it a good one, to the end of saving vexatious, expensive and prolonged litigation. The objection made to such a course, that the court is substituting its judgment for that of the jury, when this should not be done except where it is plain they have been governed by prejudice or bias, or other improper influence, does not apply, for this is not indicating what amount the court would have given, but only such amount as it would not feel at liberty to pronounce excessive.
The order will be that the judgment stand as of the date it was rendered if the plaintiff enter the remittitur indicated, but that failing to do this within thirty days after the mandate of this court is received by the Clerk of the Circuit Courr, the judgment is reversed and a new trial granted.