By the Court.
Lumpkin, J.
delivering the opinion.
When this case was up before, one of the grounds of complaint was, the excessive damages awarded by the jury ; the verdict then, as now, being for $7,000. As the Court determined to grant a new trial for other reasons, they deemed it best to express no opinion upon this, but refer it back for the consideration of another special jury, under the law as laid down by the Court. There is no complaint that the rules of law governing the case, were not properly given on the last trial, and still, the jury have found the same amount. And the only question which we propose to examine now, is, whether the verdict shall be set aside for excess ? As to the exceptions taken during the progress of the trial, we are unanimous that there is no merit in them.
As to what constitutes negligence or reasonable care, the position of this Court has invariably been, that whether the facts relied upon to establish the one or prove the exercise of the other, are true, is to be left to the jury; and that each case must depend upon its own circumstances. And .this [252]*252doctrine, notwithstanding the conflict of opinion in some of the State Courts, is maintained by Mr. Pierce, citing in its support, the decisions of this Court, and numerous authorities, both English and American. See Treatise on American R. R. Law, 282 et seq.
What, briefly, is the truth of this transaction, to be fairly deduced from the testimony ? ■
In December, 1851, Mrs. Winn is returning from a visit to Crawford county, to her home, near the Macon and Western Railroad, in the neighborhood of Forsyth, Monroe county. She is traveling in her rockaway, with four children, with a negro driver, and team of mules. She had reached a point where the public highway crossed obliquely the railroad track, and was within a few yards of the latter, when the down train of cars from Atlanta to Macon, emerged from a cut, some two hundred yards or more above the crossing, and was seen coming with its usual speed of some eighteen or twenty miles an hour. Situated as the parties were in the carriage, the train appeared to be almost directly in front of them. Mrs. Winn directed the boy to halt. The evidence of the employees of the company is, that the driver seemed to be reining up his mules ; and it is likely that there may have been a momentary pause at this juncture. The boy, however, who is proven to have been sober, and a highly trustworthy servant, calculating the chances, decided promptly that his safest course was to push across the road, ahead of the train. Perhaps, the preponderance of proof, from actual measurement, is, that he might possibly have turned round and retreated to a more remote position; but considering the nearness of the fence on his left, and other obstructions, this is somewhat questionable.
It has occurred to me, that looking to the safety of the family alone, perhaps the wisest course would have been to have let out the passengers, leaving the mules and the vehicle to the chances.' But when it is recollected, that it was a female and four helpless and dependent children who occupied the [253]*253carriage, and that, likely, the train was not more than fifteen seconds in reaching the crossing, from the time it was first discovered, it will be readily perceived what little time there was for deliberation. Upon a calm and dispassionate view of the whole facts, sound judgment will ápprove of the determination of the driver; and that was, to cross the road ahead of the train. It is conceded on all hands, that this was entirely practicable, but for the unforeseen misadventure which thwarted the attempt. When the mules were on the track, they obstinately refused, from fright or some other cause, to proceed forward, in despite of the most strenuous efforts and appliances used by the boy, to urge them forward. And then it was that the whistle was sounded, the steam reversed, and the breaks were put on; but it was too late. The driver was struck on the head by the smoke pipe of the engine and killed; the mules were cut loose from the rockaway and ran off; the carriage was taken up by the cow-catqher, and the wreck, after scattering the fragments all along by the way, was carried two hundred and seventy yards before the train was stopped. Mrs. Winn was found at some distance below the crossing, on the side of the road; the children, and ruins of the rockaway, were on the cow-catcher; the head of one of the children, swears one witness, was through the bars of the cow-catcher. One of the children expired immediately; two others survived a short time and died. Mrs. Winn’s arm was broken, and she otherwise greatly bruised; and the serious injury inflicted on Malinda, to compensate for which this suit is brought. Her skull was fractured back of the ear, and the bone pressed in upon the pupil of the eye. The deformity is apparent and permanent. How far it affects the sight, or may hereafter impair the health of the girl, cannot be well ascertained. Being matter of opinion, it must be more or less uncertain. If the bony substance protruding into the socket of the eye-ball, continues to grow, it may be attended with melancholy consequences. As it is, it is rather a matter of medical conjecture and speculation.
[254]*254Under these circumstances, is the remuneration so excessive as to make it obligatory upon this Court to , control the discretion, both of the jury and of the Court below, and direct a new trial ?
It has been argued that, inasmuch as there was fault on both sides, that the misconduct of the plaintiff should mitigate the damages; and, at first, I was inclined to adopt this suggestion. In a proper case, I am inclined to think the principle is a correct one. But is it clear that there was culpability on the part of the plaintiff? If so, in what did it consist ? It is not very apparent. To talk about inexcusable negligence on the part of June, the driver, or extraordinary carelessness, is to falsify the truth of this tragedy. At least, was not this a case where it was peculiarly the province of the jury, to compare and weigh all the facts, and come to a conclusion, not by any artificial rules, but by the ordinary principles of reasoning ?
But how stands the question as it respects the colliding train ?
In the first place, approaching a crossing as it was, was it not the obvious, as well as the legal, duty of the servants of the company, to have checked their train at once, so as to have it under their control, in anticipation of the possibility even of difficulties ? But waiving this, and conceding all that they claim on the other side, when they first saw the carriage so near the road, admitting it had halted, could they have fulfilled the requirements of the most ordinary care, without holding up at once, to prevent mischief? Could they have known that the driver would not stir, but endeav- or to maintain his position, it was great imprudence, to say nothing worse of it, to have rushed forward the engine, regardless of results. From the effects of this conduct, and in this view of t.he case, they can never escape. Adopting their own version of the affair, they put the persons in the carriage in imminent danger, and did nothing whatever to contribute to their safety, or facilitate their escape.
[255]*255But this is not all.
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By the Court.
Lumpkin, J.
delivering the opinion.
When this case was up before, one of the grounds of complaint was, the excessive damages awarded by the jury ; the verdict then, as now, being for $7,000. As the Court determined to grant a new trial for other reasons, they deemed it best to express no opinion upon this, but refer it back for the consideration of another special jury, under the law as laid down by the Court. There is no complaint that the rules of law governing the case, were not properly given on the last trial, and still, the jury have found the same amount. And the only question which we propose to examine now, is, whether the verdict shall be set aside for excess ? As to the exceptions taken during the progress of the trial, we are unanimous that there is no merit in them.
As to what constitutes negligence or reasonable care, the position of this Court has invariably been, that whether the facts relied upon to establish the one or prove the exercise of the other, are true, is to be left to the jury; and that each case must depend upon its own circumstances. And .this [252]*252doctrine, notwithstanding the conflict of opinion in some of the State Courts, is maintained by Mr. Pierce, citing in its support, the decisions of this Court, and numerous authorities, both English and American. See Treatise on American R. R. Law, 282 et seq.
What, briefly, is the truth of this transaction, to be fairly deduced from the testimony ? ■
In December, 1851, Mrs. Winn is returning from a visit to Crawford county, to her home, near the Macon and Western Railroad, in the neighborhood of Forsyth, Monroe county. She is traveling in her rockaway, with four children, with a negro driver, and team of mules. She had reached a point where the public highway crossed obliquely the railroad track, and was within a few yards of the latter, when the down train of cars from Atlanta to Macon, emerged from a cut, some two hundred yards or more above the crossing, and was seen coming with its usual speed of some eighteen or twenty miles an hour. Situated as the parties were in the carriage, the train appeared to be almost directly in front of them. Mrs. Winn directed the boy to halt. The evidence of the employees of the company is, that the driver seemed to be reining up his mules ; and it is likely that there may have been a momentary pause at this juncture. The boy, however, who is proven to have been sober, and a highly trustworthy servant, calculating the chances, decided promptly that his safest course was to push across the road, ahead of the train. Perhaps, the preponderance of proof, from actual measurement, is, that he might possibly have turned round and retreated to a more remote position; but considering the nearness of the fence on his left, and other obstructions, this is somewhat questionable.
It has occurred to me, that looking to the safety of the family alone, perhaps the wisest course would have been to have let out the passengers, leaving the mules and the vehicle to the chances.' But when it is recollected, that it was a female and four helpless and dependent children who occupied the [253]*253carriage, and that, likely, the train was not more than fifteen seconds in reaching the crossing, from the time it was first discovered, it will be readily perceived what little time there was for deliberation. Upon a calm and dispassionate view of the whole facts, sound judgment will ápprove of the determination of the driver; and that was, to cross the road ahead of the train. It is conceded on all hands, that this was entirely practicable, but for the unforeseen misadventure which thwarted the attempt. When the mules were on the track, they obstinately refused, from fright or some other cause, to proceed forward, in despite of the most strenuous efforts and appliances used by the boy, to urge them forward. And then it was that the whistle was sounded, the steam reversed, and the breaks were put on; but it was too late. The driver was struck on the head by the smoke pipe of the engine and killed; the mules were cut loose from the rockaway and ran off; the carriage was taken up by the cow-catqher, and the wreck, after scattering the fragments all along by the way, was carried two hundred and seventy yards before the train was stopped. Mrs. Winn was found at some distance below the crossing, on the side of the road; the children, and ruins of the rockaway, were on the cow-catcher; the head of one of the children, swears one witness, was through the bars of the cow-catcher. One of the children expired immediately; two others survived a short time and died. Mrs. Winn’s arm was broken, and she otherwise greatly bruised; and the serious injury inflicted on Malinda, to compensate for which this suit is brought. Her skull was fractured back of the ear, and the bone pressed in upon the pupil of the eye. The deformity is apparent and permanent. How far it affects the sight, or may hereafter impair the health of the girl, cannot be well ascertained. Being matter of opinion, it must be more or less uncertain. If the bony substance protruding into the socket of the eye-ball, continues to grow, it may be attended with melancholy consequences. As it is, it is rather a matter of medical conjecture and speculation.
[254]*254Under these circumstances, is the remuneration so excessive as to make it obligatory upon this Court to , control the discretion, both of the jury and of the Court below, and direct a new trial ?
It has been argued that, inasmuch as there was fault on both sides, that the misconduct of the plaintiff should mitigate the damages; and, at first, I was inclined to adopt this suggestion. In a proper case, I am inclined to think the principle is a correct one. But is it clear that there was culpability on the part of the plaintiff? If so, in what did it consist ? It is not very apparent. To talk about inexcusable negligence on the part of June, the driver, or extraordinary carelessness, is to falsify the truth of this tragedy. At least, was not this a case where it was peculiarly the province of the jury, to compare and weigh all the facts, and come to a conclusion, not by any artificial rules, but by the ordinary principles of reasoning ?
But how stands the question as it respects the colliding train ?
In the first place, approaching a crossing as it was, was it not the obvious, as well as the legal, duty of the servants of the company, to have checked their train at once, so as to have it under their control, in anticipation of the possibility even of difficulties ? But waiving this, and conceding all that they claim on the other side, when they first saw the carriage so near the road, admitting it had halted, could they have fulfilled the requirements of the most ordinary care, without holding up at once, to prevent mischief? Could they have known that the driver would not stir, but endeav- or to maintain his position, it was great imprudence, to say nothing worse of it, to have rushed forward the engine, regardless of results. From the effects of this conduct, and in this view of t.he case, they can never escape. Adopting their own version of the affair, they put the persons in the carriage in imminent danger, and did nothing whatever to contribute to their safety, or facilitate their escape.
[255]*255But this is not all. After the collision occurred, they ran on two hundred and seventy yards, without taking up, with the vehicle and its victims thumping on the rail, when it is in proof by the lamented Foote, that they could have brought the train to a dead stand at the distance of one hundred and fifty yards! For they were ascending an up-grade of thirty-seven feet to the mile, as testified to by Gol. Whittle and others ! And when and where the damage to this family was done, does not appear; possibly, the whole of it during the last one hundred and twenty yards, unnecessarily consumed in arresting the train.
We will not believe this catastrophe was wantonly perpetrated. Humanity forbids it. The engineer, conductor, and all, were paralyzed at the appalling spectacle, the magnitude of the mischief they had inflicted. If they decline accepting this explanation, or apology, all I can say is, they have failed to furnish any other, or better.
We return to the main point. Is this verdict so large as to demand of this Court, in the exercise of its supervisory power, to control the discretion of the Circuit Judge, and send it back for the consideration of a third jury ?
There is, as I conceive, a legal principle involved in this case, which should have much to do in deciding this question. It is plain, that from the reckless conduct of the servants of the company, Mrs. Winn was placed in a state of positive and palpable peril. Had the driver stood still, the party might have escaped unhurt. But might he not have reasonably concluded, that he might be- incapable of managing his mules ? He had to adopt the alternatives, of crossing the road, risking an upset by turning shortly and suddenly round, or remaining still, at certain peril. He could not have anticipated the stubbornness of the mules. Suppose he acted unwisely, and thereby unintentionally contributed to the sad misfortune, ought the consequences to be visited upon the sufferers ? We hold not, unless the driver’s conduct resulted from a rash apprehension of danger, which [256]*256did not exist, and the injury can be traced or attributed to this miscalculation. And we recently recognized this doctrine, in the case of Mrs. Polk, adm'x, &c. against the SouthWestern Railroad Company, not yet reported. The Books are full of it.
While, then, we reassert the right of the Court to interfere for the relief of a party against a despotic verdict, in cases of tort, believing as we do, that it is absolutely necessary for the sound administration of justice; still, a Court should be cautious in setting aside a verdict, merely for excess. It is not enough that it be, in our opinion, too high. We cannot rightfully substitute our judgment for that of the jury. In this case, the party most grievously injured, has been kept out of the compensation to which she has been entitled since 1851. Heavy expenses have been incurred to prosecute this litigation. Two special juries have found the same sumi Is it so “ outrageously excessive,” in the language of some of the authorities, as to force the conviction, that the jury have been actuated by improper influences, passion, partiality, prejudice or corruption ? Does the verdict strike every body so at the first blush ?
Had I been on the jury, I might have preferred a different admeasurement of damages; and yet, I do not hesitate to say, that had the child been my daughter, I would not accept the money for the injury.
Judgment affirmed.