I concur, except as to the question of punitive damages. It is true the obstruction of the defendant railroad company was a menace to navigation, causing loss of timber, and that it so remained from October, 1904, until April, 1906. But there is no evidence that the piles which constituted the obstruction were not necessary to the safety of the bridge. The only evidence that the railroad neglected its duty to remove the piles as soon as possible was the length of time they were allowed to remain as obstructions to navigation. From this delay the inference of negligence and a verdict for actual damages may be sustained. But there was not a particle of evidence that the delay was wanton or wilful. On the contrary, the undisputed evidence offered by defendant was to the effect that, owing to its age and the increase of traffic, the old bridge became unsafe; that to render it safe it was necessary for the railroad company to strengthen it with piles until it could procure and put in a heavy iron bridge; and that the delay in procuring the iron bridge was due to the fact that manufacturers of bridge material could not keep up with the demand. *Page 287
It was the imperative duty of the railroad company to make the bridge safe to the traveling public. And it seems to me there was a total absence of proof of wilful, wanton or reckless delay in procuring the bridge, which it was necessary to procure, before the piles could be removed with safety to the traveling public.
For these reasons, I can not escape the conviction that there is no basis in the evidence for awarding the plaintiff punitive damages or for punishing the defendant, and the jury should have been so instructed, in accordance with the request of defendant's counsel.