
    Saint Louis & San Francisco Railroad Company v. Virgil E. Garner.
    [51 South. 273.]
    1. Railroads. Flag stations. Signals to stop. Intending passenger.
    
    A railroad company lias the right to stop its trains at flag stations only on signals from its station agent, and may disregard signals given by others.
    2. Same. Same. Punitive damages.
    
    Punitive damages are not recoverable against a railroad company for failing to stop its train at a flag station for an intending passenger because the engineer could by the exercise of ordinary care and diligence have seen the signal to stop.
    From: tbe circuit court of Monroe county.,
    
      Hon. John H. Mitchell, Judge.
    Garner, appellee, was plaintiff in tbe court below; tbe rail road company, appellant, was defendant there. From a judgment in plaintiff’s favor defendant appealed to tbe supreme court. Tbe facts are stated in tbe opinion of tbe, court.
    
      E. 0. SyTces, Jr., for appellant.
    Plaintiff bases bis case upon tbe alleged wilful wrong of tbe engineer in not stopping tbe train after seeing and understanding tbe signals or failing to see tbe signals. His only charge upon tbe measure of damages is one asking only for punitive damages.
    This is not a ease where punitive damages may be awarded, because tbe proper signal to stop was never given to tbe engineer. It was tbe duty of tbe agent to flag tbe train and proper for bim to flag it witb something white, like a handkerchief or letter. Tbe attempts of others to stop tbe train meant nothing at all to tbe engineer, because be relied upon tbe agent' to flag bim in tbe proper manner if a stop' was necessary. _ Tbe engineer was on tbe lookout for signals from tbe agent but received none. He saw some people at tbe depot but did not see them give bim a stop signal.
    It is well to bear in mind in discussing exemplary or punitive damages that tbe theory upon which they are given is simply tbe theory of punishment and public example, and allowing such damages is really a blending of tbe criminal and civil law and is an anomaly in legal procedure. 6 Thompson on Negligence, p. 246,'§ 716.
    In this case tbe conduct of tbe engineer, instead of in any way being wanton, malicious, or capricious or containing any of tbe elements of either, was in every way reasonable. No proper signal to stop was given. In every case of this character decided by this court where tbe question of punitive damages was left to tbe jury, there was testimony that tbe proper stop signal was given. Southern B. Go. v. Banning, 83 Miss. 167; Yazoo, etc., B. Go. v. White, 82 Miss. 120; New Orleans, etc., B. Go. v. Wilson, 63 Miss. 352; Kansas Gity, etc., B. Go. v. Fite, 67 Miss. 373.
    Tbe first instruction given for plaintiff is erroneous because it instructs tbe jury that if tbe engineer could by tbe exercise of ordinary care and diligence have seen tbe signal to stop and understood it, and that tbe failure to stop was due to capriciousness, etc., then they may assess punitive damages, etc. This charge fails to instruct tbe jury what is tbe difference between actual and punitive damages, etc., and in effect tells them that they may assess punitive damages for tbe lack of ordinary care and diligence.
    
      Paine & Paine, for appellee.
    Instructions must be construed as a whole and tbe law deducible from all of them on tbe point in question. If there was error in plaintiff’s first instruction it was cured by tbe fourth instruction, given appellant wbicb is clear and full and announces the law on this point. Hill v. Terry, 92 Miss. 671, 46 South. 829; Mississippi, etc., B. Go. v. Hardy, 88 Miss. 732j 41 South. 505.
    The court should not reverse the cause on the facts or because the verdict is excessive. It appears that the testimony is conflicting and that being the case and the jury having passed upon the controverted questions of fact this court will not interfere with the verdict but will. let it stand. Buckingham v. Walker, 48 Miss. 609; Railroad Go. v. Williams, 67 Miss. 18, 41 South. 505; Johnson v. Walker, 86 Miss. 757.
    “Where punitive damages are allowable the fixing of the •amount of such damages is peculiarly within the province of the jury.” Railroad Go. v. Mitchell, 83 Miss. 179.
    Argued orally by H. 0. Sykes, Jr., for appellant, and by Geo. ü. Paine, for appellee.
   Smith J.,

delivered the opinion of the court.

Greenwood Springs is a station on appellee’s road where its trains stopped when flagged by the agent in charge of the station. On May 31, 1907, appellant and several others, having notified the agent that they desired to take passage on one of appellant’s trains,-were at the depot for that purpose. As the train approached, appellant and his companions signaled the •engineer to stop, by waving their suit cases across the track. There is some evidence, also1, that the agent signaled the engineer by waving his hands. The agent testified that he was not at the depot when the train whistled, that he got back to the depot just before the train passed, and that the only signal he made was “to hold up four fingers,” to indicate to the engineer that he had four .passengers. The engineer did not stop his train, and stated that he saw several parties at the station, hut did not see any signal made. From a judgment awarding appellee punitive damages on account of the failure of the engineer to stop the train, this appeal is taken.

At the request of appellee the court gave the following instruction to the jury: “The court charges the jury that they are the sole judges of the amount of damages, from the evidence in the; case, sustained by the plaintiff, and if they believe from the evidence in the case that the engineer in charge of the engine saw the signal made by the plaintiff and others at Greenwood Springs station on May 31, 1907, if they from the evidence believe there was a signal made to stop, or if the engineer in charge of the engine on the evening of May 31, 1907, at Greenwood Springs station, could by the exercise of ordinary care and diligence have seen the signal to stop1, and understood the signal, and failed to stop' the train, and that the failure to-stop was due to the eapriciousness or recklessness or malice or wilfulness on the part of the said engineer, then the jury may assess the defendant with punitive damages; that is, damages by way of punishment to compel the defendant to have due regard for the rights of the public, and return a verdict for the plaintiff, in any sum not exceeding the amount of damages sued for.” The giving of this instruction was fatal error:

First. Because it submitted to the jury the question of whether the engineer obeyed a signal made by persons other than the station agent. TJnder the evidence the only signal the engineer was required to obey was one made by the station-agent. There was no evidence that appellant was accustomed to stop its trains on signals made by intending passengers; but, on the contrary, it maintained at this station a depot, with an agent in charge thereof, whose duty it was to signal trains when it became necessary for trains to stop. A railroad company is-entitled to have the star-ting and stopping of its trains regulated by its employes, and when it maintains an agent at a flag station, whose duty it is to signal trains when it becomes necessary for same to stop at such station, the failure of its engineer to-stop on tbe signal of an intending passenger is not negligence. Tbe negligence bere complained of is not that of tbe station .agent, bnt of tbe engineer.

Second. Because it permitted tbe jury to award punitive ■damages if tbe engineer “could by tbe exercise of ordinary care and diligence bave seen tbe signal to stop.” Railroad Company v. Lanning, 83 Miss. 161, 35 South. 417.

Reversed and' remanded.  