
    R. Carmanty and Wife v. Mexican Gulf Railway Company.
    Railroad companies are responsible for injuries inflicted upon passengers in consequence of the negligence, imprudence and want of skill of persons in the service of those companies; and the injury having occurred, it is not necessary that the party who sues for damages should allege the particular cause of the accident.
    APPEAL from the Fifth District Court of New Orleans. Buchanan, J.
    
      W. S. Upton, for plaintiffs,
    made the following points: That the law of this case is to be found in 13 Peter’s U. S. Rep. 181, Stokes v. Saltonstall. The facts presented by the record make known great negligence on the part of the defendants. Those facts were passed upon by the jury, and their verdict should not be disturbed.
    
      Janin and Taylor, for the defendants,
    contended: The defendants have proved : 1st, that there was a competent and careful engineer in charge of the locomotive; 2d, that there was no defect in the car in which the injury was sustained, the axles being unbroken notwithstanding the severity of the shocks; 3d, that there was no derangement or imperfection of the rails; and, 4th, that the only wood at the point on the road where the accident occurred, was wood of which the defendants had had charge of ns freight, and that the same was deposited so as not to affect the passage of the cars upon the road. This, certainly, was sufficient to rebut the presumption recognized by the Supreme Court of the United States in the case referred to, and make it necessary for the plaintiffs to establish the fault of the defendants by positive proof. This was not done.
    It is not easy, from the facts shown in the record, to determine, with any certainty, what occasioned the accident. It not unfrequently happens that cars on railroads run off the track without its being possible to ascertain the cause. The smallest substances are known to be at time sufficient to produce such an effect; and it is probable, that in some instances the passing of animals may have caused the deposite of such substances. It is, however, probable, that the accident in the present case was caused by a stick of wood upon the tract, or very near it. Let us suppose for a moment that such was the fact. Then, it seems clear, that this cannot be attributed to the defendants. The wood had been brought down by them as freight. It was deposited in such a manner as not to interfere in the least with the railroad. Two trains of cars passed after the wood was so deposited, without interruption or accident. After the wood was deposited by the defendant, it was disturbed by the negroes of the owner of it, who were engaged in hauling it away. They were so engaged at the time the second train of cars passed. If it be true, that a stick of this wood occasioned the mischief, by whom was it placed in such a position as to cause it? Not by the defendants most certainly; but by the negroes of Proctor. Under the facts, then, no recovery can be had against the defendants, unless they are to be held responsible for the acts, not of their own agents only, but of all other persons along the railroad. However, a jury may be inclined to act upon such a principle when their sympathies are excited, it is hardly probable that a court will recognize it as having any foundation in law or in equity.
    But if this is a case in which any responsibilty attaches to the defendants, the damage awarded to the plaintiffs are excessive. In the Ohio case and in that of Stolces v. Saltonslall, there was gross misconduct: and vindictive damages were properly due. Here, there was nothing of the kind. If the plaintiffs are entitled to recover at all, it is only a fair compensation for the pecuniary loss they have suffered. They can justly pretend to nothing more. The damages, however, which have been awarded them are so extravagant that they must be looked on as a penalty inflicted on the defendants, rather than a compensation given to the plaintiffs.
   The judgment of the court was pronounced by

Eustis, C. J.

This is anactioninstituted by the husband and wife against the defendant for $15,000 damages from injuries sustained by the wife from her having been thrown from the defendants’ car when under way. It appears, that on the 12th of September, 1849, when the locomotive was going very fast on the Mexican Gulf Railway, near Proefarr’s landing, one of the cars was thrown off the track and broke down. Several of the passengers were wounded and seriously injured; the wife, one of the plaintiffs, had her leg broken in the shock, and was confined to her bed for four months in consequence of the fracture. The case was submitted to a jury who rendered a verdict for the plaintiffs in the sum of $4000; judgment was rendered accordingly, and the defendants have appealed.

The plaintiffs’ suit is founded on the allegation of negligence, want of skill and imprudence of persons in the service of the company; and it is contended, that this general allegation is limited by the cause of the accident, which is assigned in the petition, which is, that the company had placed many cords of wood so near the rails, and had so badly piled said wood that the action of the locomotive in passing caused the same to fall, and to fall upon the road. It is certain, that the accident happened at the wood pile, and the probability is that it was caused by the falling of a log of wood on the track.

Admitting that some uncertainty exists on this subject, and the testimony of the witnesses is conflicting, we cannot disturb the verdict of a jury on that account. The cause of accidents of this kind is often difficult to be ascertained with pi’ecision, but the plaintiffs in this case have proved, that she was a passengar in the cars; she has proved the accident and great bodily injury to herself; she has designated a cause, which she was not bound in law to do, and which her case was weakened by stating; and the verdict of the jury on contradictory testimony has affirmed her allegations. Mrs. Carmanty,at the time of the accident was a teacher in one of the public schools of this city. ¡Her salary was $60 per month; and, though her means were limited, she -was very much esteemed and respected in her vocation. She suffered a great deal from the injury and from her confinement. The estimate of the value of the services of the surgeons, in consideration of the position of Mrs. Carmanty, is rated at $250 in the testimony; but were she wealthy the charge iwadld be double. :'$100 was considered a fair estimate-.of the ¡cost mf ¡medicines, nurses, and apparatus. The fractured limb will always'be more ordess attended \with pain after much exercise and a,change.of \weather,.and it-,will take twoyears'before.-sheican use it as welhastthe-olher.

Under'tliese circumstances the jury assessed the damages at-1$d0G0, which we are called upon to reduce as being excessive. Notwithstanding our control over the verdicts of juries in cases of this kind, and our disposition not to allow excessive damages in any case to be exacted, we are at a loss in'this instance for a principle on which the amount of the damages can be reduced. ’Every case of this kind must depend on its merits; and we cannot undertake to say that the jury has exceeded that discretion in the allowance of a 'Compensation to the plaintiff for her grievous injury, which the law empowers them’to exercise, and which they have exercised under the responsibility of their oaths, and which the judge of the first instance has sanctioned.

The judgment of the district court is therefore affirmed, -with costs.  