Judge Stites
delivered the opinion of the court.
This action was brought by Riley against Hawkins & Co., the proprietors, and Roswell, the driver, of a mail stage coach, running between Richmond and Lexington, for injuries alledged to have been done the plaintiff and his family, by the wanton, reckless and negligent conduct of the driver, in running the coach against and upsetting the buggy of of plaintiff, in which the latter and his wife and children were traveling upon the Richmond turnpike.
The answer of defendants put in issue all the material allegations of the petition, and set up in defence that the injury, if any, resulted from the fault of the plaintiff. Upon the trial below, the jury upon the evidence, and under the instructions of the court, returned a verdict for the plaintiff of two hundred and fifty dollars in damages, and a new trial having [107]*107been moved and denied, the defendants have appeal' ed.
1. Where the law prescribes a rule for the government of persons, vehicles, vessels, or persons meeting or passing on pub-Í i c highways, such rule should be observed; & if the party, vehicle, or vessel, thus meeting or passing another, fail or neglect to comply with such rule, by which a collision and injury ensue, such person, vessel, or vehicle, should be regarded as in fault, and not allowed to recover damages. But if the party complaining observe such rules, and be not otherwise in fault, and sustain injury from collision with another vessel or vehicle, the party injured will be entitled to damages unless it appear that it could not have been avoided by the exercise of such prudence and skill as prudent and skillful men would have observed under like circumstances.
It is complained here that the verdict is excessive, and not authorized by the evidence, and that the court erred to appellants’ prejudice, in granting instructions at plaintiff’s instance. ■
It appears from the bill of exceptions that Riley, with his wife and little children, was traveling in a buggy on the turnpike towards Richmond, some little distance in advance of the coach, which was proceeding in the same direction ; and desiring, for some purpose, to stop, drew up on the right of the turnpike, next to the outer edge of the road, leaving the coach to pass on the left. In passing, or attempting to pass the buggy, the collision between the vehicles occurred — the wheels of the buggy next the coach were crushed — the buggy was upset, and the other injuries compláined of ensued. The occupants of the buggy were greatly alarmed, and some of the children slightly injured.
The question of fact, mainly controverted, was, whether the collision was occasioned by the recklessness and negligence of the driver of the coach, or by the fault of the plaintiff in suddenly stopping in advance of the coach. Upon this point the evidence was contradictory — the witnesses on either side varying in their statements of facts, and also in their opinions as to the culpability of the driver.
Without discussing the merits of the evidence, which it was peculiarly the province of the jury to determine, we shall proceed to notice the instructions complained of.
The circuit court, at the instance of plaintiff, instructed the jury — 1st. “If the jury believe, from the evidence, that Roswell, as the servant of the other defendants, drove his stage coach in and upon the buggy of the plaintiff, then the law is for the plaintiff, and the jury should so find, unless they believe that such injury was wholly unavoidable, or was superinduced by the misconduct of the plaintiff himself; and in finding for plaintiff they [108]*108must give him the actual injury sustained, and may-give exemplary damages at their discretion.”
2d. “That any negligence, inattention, or want of proper care on the part of the defendant Roswell, in driving, fixes the liability upon the part of himself and his employers, and the jury have the right to weigh all the facts in evidence as bearing upon the question of such negligence, inattention or want of proper care.”
Sd. “The fact that the United States mail was carried in said stage coach did not entitle the defendants to all the road; and if plaintiff’s buggy was so situated at the time of the collision that the stage coach had room, with careful driving, to pass him in overtaking the buggy,'by bearing to the left, then the defendants are liable in this action, if their coach did, in fact, run into and upon the buggy of plaintiff; provided the buggy, prior to and at the time of the collision, was on the right-hand side of the road, leaving the stage room to pass on the left.”
4th. “That if Roswell was, at the time of said collision, the servant of the other defendants, they are responsible for the same, if the injury was the result of his misconduct and negligence.”
If, as stated in the first'instruction, the collision, and consequent injuries resulting therefrom, were superinduced by the misconduct of the plaintiff, it is very clear that he could not recover; and this qualification was properly inserted in the instruction.— But the jury are told in the same instruction, that, in the absence of any fault of the plaintiff superinducing the collision, to excuse the defendant, such collision must have been wholly unavoidable. Such, in our opinion, is not the proper criterion to test the liability of the defendants. Such a rule might be attended with great hardship and injustice, and would, in almost every case of collision, not brought about by the party complaining, subject the other to liability, notwithstanding the utmost reasonable care and prudence had been observed to avoid it. It renders [109]*109them liable unless the collision was wholly unavoidable, without any regard to the degree of care and skill exercised to prevent it.
2. By the Rev. Stat., chap. 103, p. 678, a rule is prescribed to be observed by all vehicles running on turnpike and plank roads, to the effect that “when a fast vehicle overtakes one of slower movement, the latter shall bear to the right, so as to permit the other to pass on its left or near side. If this rule be observed, and the vehicle passing fail or neglect to use such skill and prudenee as skillful and prudent drivers, under like circum stances, should and would use, the driver, and those employing him, will be responsible lor any injury sustained.
[109]*109The criterion adopted by this court in Watson, fyc. vs. McGuire, decided at the present term, to test the liability of parties in cases of collision, is, in our opinion, applicable to the present case.
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Judge Stites
delivered the opinion of the court.
This action was brought by Riley against Hawkins & Co., the proprietors, and Roswell, the driver, of a mail stage coach, running between Richmond and Lexington, for injuries alledged to have been done the plaintiff and his family, by the wanton, reckless and negligent conduct of the driver, in running the coach against and upsetting the buggy of of plaintiff, in which the latter and his wife and children were traveling upon the Richmond turnpike.
The answer of defendants put in issue all the material allegations of the petition, and set up in defence that the injury, if any, resulted from the fault of the plaintiff. Upon the trial below, the jury upon the evidence, and under the instructions of the court, returned a verdict for the plaintiff of two hundred and fifty dollars in damages, and a new trial having [107]*107been moved and denied, the defendants have appeal' ed.
1. Where the law prescribes a rule for the government of persons, vehicles, vessels, or persons meeting or passing on pub-Í i c highways, such rule should be observed; & if the party, vehicle, or vessel, thus meeting or passing another, fail or neglect to comply with such rule, by which a collision and injury ensue, such person, vessel, or vehicle, should be regarded as in fault, and not allowed to recover damages. But if the party complaining observe such rules, and be not otherwise in fault, and sustain injury from collision with another vessel or vehicle, the party injured will be entitled to damages unless it appear that it could not have been avoided by the exercise of such prudence and skill as prudent and skillful men would have observed under like circumstances.
It is complained here that the verdict is excessive, and not authorized by the evidence, and that the court erred to appellants’ prejudice, in granting instructions at plaintiff’s instance. ■
It appears from the bill of exceptions that Riley, with his wife and little children, was traveling in a buggy on the turnpike towards Richmond, some little distance in advance of the coach, which was proceeding in the same direction ; and desiring, for some purpose, to stop, drew up on the right of the turnpike, next to the outer edge of the road, leaving the coach to pass on the left. In passing, or attempting to pass the buggy, the collision between the vehicles occurred — the wheels of the buggy next the coach were crushed — the buggy was upset, and the other injuries compláined of ensued. The occupants of the buggy were greatly alarmed, and some of the children slightly injured.
The question of fact, mainly controverted, was, whether the collision was occasioned by the recklessness and negligence of the driver of the coach, or by the fault of the plaintiff in suddenly stopping in advance of the coach. Upon this point the evidence was contradictory — the witnesses on either side varying in their statements of facts, and also in their opinions as to the culpability of the driver.
Without discussing the merits of the evidence, which it was peculiarly the province of the jury to determine, we shall proceed to notice the instructions complained of.
The circuit court, at the instance of plaintiff, instructed the jury — 1st. “If the jury believe, from the evidence, that Roswell, as the servant of the other defendants, drove his stage coach in and upon the buggy of the plaintiff, then the law is for the plaintiff, and the jury should so find, unless they believe that such injury was wholly unavoidable, or was superinduced by the misconduct of the plaintiff himself; and in finding for plaintiff they [108]*108must give him the actual injury sustained, and may-give exemplary damages at their discretion.”
2d. “That any negligence, inattention, or want of proper care on the part of the defendant Roswell, in driving, fixes the liability upon the part of himself and his employers, and the jury have the right to weigh all the facts in evidence as bearing upon the question of such negligence, inattention or want of proper care.”
Sd. “The fact that the United States mail was carried in said stage coach did not entitle the defendants to all the road; and if plaintiff’s buggy was so situated at the time of the collision that the stage coach had room, with careful driving, to pass him in overtaking the buggy,'by bearing to the left, then the defendants are liable in this action, if their coach did, in fact, run into and upon the buggy of plaintiff; provided the buggy, prior to and at the time of the collision, was on the right-hand side of the road, leaving the stage room to pass on the left.”
4th. “That if Roswell was, at the time of said collision, the servant of the other defendants, they are responsible for the same, if the injury was the result of his misconduct and negligence.”
If, as stated in the first'instruction, the collision, and consequent injuries resulting therefrom, were superinduced by the misconduct of the plaintiff, it is very clear that he could not recover; and this qualification was properly inserted in the instruction.— But the jury are told in the same instruction, that, in the absence of any fault of the plaintiff superinducing the collision, to excuse the defendant, such collision must have been wholly unavoidable. Such, in our opinion, is not the proper criterion to test the liability of the defendants. Such a rule might be attended with great hardship and injustice, and would, in almost every case of collision, not brought about by the party complaining, subject the other to liability, notwithstanding the utmost reasonable care and prudence had been observed to avoid it. It renders [109]*109them liable unless the collision was wholly unavoidable, without any regard to the degree of care and skill exercised to prevent it.
2. By the Rev. Stat., chap. 103, p. 678, a rule is prescribed to be observed by all vehicles running on turnpike and plank roads, to the effect that “when a fast vehicle overtakes one of slower movement, the latter shall bear to the right, so as to permit the other to pass on its left or near side. If this rule be observed, and the vehicle passing fail or neglect to use such skill and prudenee as skillful and prudent drivers, under like circum stances, should and would use, the driver, and those employing him, will be responsible lor any injury sustained.
[109]*109The criterion adopted by this court in Watson, fyc. vs. McGuire, decided at the present term, to test the liability of parties in cases of collision, is, in our opinion, applicable to the present case.
In traveling public highways, by land or water, if the law prescribes any particular rules to govern persons, vehicles, or vessels, in meeting or passing on such highways, such rules should be observed; and if a party, vessel, or vehicle, thus meeting or passing another, fails or neglects to comply with such regulations, and sustains any injury by collision with another in consequence of such failure or neglect, such person, vessel, or vehicle, should be regarded as in fault, and not allowed to recover damages therefor; but if the party complaining, whilst observing such prescribed regulations, and not otherwise in fault, sustains injury or damage from collision with another person, vessel, or vehicle, the latter should be held responsible for such injury or damage, unless it appears that it could not have been avoided by the exercise of such prudence and skill as prudent and skillful persons would have observed under the like circumstances.
By the Revised Statutes (chap. 103, p. 678.) it is provided, as one of the rules to be observed by all vehicles running on any turnpike or plank road, that “where a fast vehicle overtakes one of slower movement, the latter shall bear to the right, so as to permit the other to pass on its left or near side.” Now, if the plaintiff below was, at the time of the collision, conforming to this regulation, and not otherwise in fault, and the collision could have been avoided by the driver of the coach by the use oí such skill and prudence as skillful and prudent drivers, under like circumstances, should and would have observed, then the driver, and those in whose employ he was at the time, are responsible for the injury sustained.
3. If an injury occur by a collision which is the result of wanton reclilessness or gross negligence i n driving a vehicle, a jury may assess exemplary damages; but if there is an absence of wanton recklessness or gross negligence, exemplary damages should not be given.
4. It is the duty of proprietors of stage coaches to employ prudent & skillful drivers; and if they fail in this duty, and injury result to others from their wanton recklessness or gross negligence, the proprietors, as well as the drivers, are responsible for exemplary damages.
In addition to the objection taken to the criterion of negligence adopted in the instruction, it is contended that it is erroneous in permitting the jury to give exemplary, or vindictive damages.
If the collision was brought about by the wantonness, recklessness, or gross negligence of the driver, then it was permissible in the jury, in view of ail the facts, to award what the law terms exemplary damages as well against the proprietors as the driver — but for a mere casualty or collision, without such wantonness, recklessness, or gross negligence, exemplary damages should not be awarded.
It is the duty of the proprietors of stage coaches, and other public conveyances, to procure and employ prudent and skillful drivers; and if neglectful of their duty, they intrust their vehicles to men unskillful and imprudent, who recklessly, wantonly, or by gross negligence, whilst in their employment and service, injure the persons or property of others, the employers, as well as the drivers, should be held amenable, not only for the actual injury sustained, but for such exemplary damages as a jury, in view of all the attendant facts, should deem proper to award.
To exempt the proprietors from any liability beyond the actual injury in such cases, would in many cases deprive the traveling public of any protection from the gross and unwarrantable injuries inflicted by reckless and irresponsible drivers, and might lead those injured, knowing the irresponsibility of the employee, to take that redress in their own hands against the drivers, which the law refused them against the proprietors of the vehicle.
With regard to the instructions given at the instance of appellants, as wmll as the others granted for the appellee, we deem it unnecessary, after what has been said as to the general principles and main questions of law arising in the case, to notice them in detail. We will remark, however, that the granting of the appellants’ instructions did not, as was [111]*111contended, have the effect to cure the errors contained in those of appellee, nor render the latter less available for reversal in this court.
For the errors in the instructions mentioned, the judgment is reversed, and cause remanded for a new trial in conformity with this opinion.