The first error assigned in this case is, that “ the court erred in overruling defendant’s exception to plaintiff’s petition.” Under this, appellant submits the two following propositions:
“ The petition should have set forth clearly the residence of defendant.
“ Plaintiff’s action being founded on the statute, the petition *597should either have, alleged that plaintiff'is the only person entitled to damages under the statute, or should have shown that the action was brought for the benefit of all who were entitled, and who they were.”
The defendant was a corporation, and, as such, could be sued either in the county of its domicil, or in the county where the alleged trespass occurred. (Acts 14th Leg., p. 31; Rev. Stats., art. 1198, sec. 21.)
This trespass was averred to have been in the county of Galveston, where the suit was instituted, and hence the allegation of residence of defendant was not material to show that the court had jurisdiction of the person.
As to the other proposition: It was not apparent of record that there were other parties in interest, so that this question could have been raised by demurrer, and there was no plea in abatement alleging the fact.
The only objection interposed was a general demurrer.
Under the circumstances, we do not think either proposition well taken. (March v. Walker, 48 Tex., 376.)
The second error assigned is, that “ the court erred in overruling appellant’s motion for a continuance.”
Under the circumstances of the case as finally tried, the application related only to the testimony of Mrs. Ryan, a female witness, whose deposition was not attempted to be taken.
As the statute provided that this could be done, and as she was not compelled to obey a subpoena, there was no proper diligence used to have entitled appellant to a continuance. (Paschal’s Dig., art. 3726 ; Rev. Stats., art. 2218.)
The third error assigned is, that “the court erred in refusing to permit defendant to read in evidence to the jury the following sections in the charter of the city of Galveston: Title IV, article 1, City council, powers and duties, secs. 34, 35, 41, 106 ”
By the express terms of the charter itself, it had the force and effect of a public act, and, as such, the court would take' *598judicial notice of it, as of any public statute, and apply the law-arising therefrom to the facts of the case.
There was no error in the action of the court refusing to permit the charter to be read in evidence to the jury.
The fourth, fifth, and sixth errors assigned present the material questions in the case, and will be grouped and considered together.
O
Fourth. The court erred in charging the jury, “that negligence is the want of such caution as is usually observed by persons generally in their acts.”
Fifth. The court erred in charging the jury, “ that gross negligence is a greater or higher degree of negligence than simple or ordinary negligence.”
Sixth. The court erred in charging the jury, “ that if you believe from the evidence that the plaintiff’s wife, Mrs. Margaret Bradley, was injured by the willful act, or omission, or gross negligence of defendant, and that such injuries caused her death; and if you further do not believe from the evidence that Mrs. Bradley, by her own negligence, contributed to her injuries, then the plaintiff would be entitled to your verdict for such reasonable exemplary damages as you believe to be proportioned to such injuries.”
The exceptions of appellant to the charge of the court bring the same under review.
The charge is very brief, and, if it were otherwise unexceptionable under the evidence, is not such a full and satisfactory presentation of the law of gross and contributory negligence, and of exemplary damages and the measure of the same, as would enable an ordinary jury to fully comprehend their meaning, and make the proper application to the facts in evidence.
It is evident from the case as made by the plaintiff, the charge of the court, and the very large amount of the verdict, more than that usually allowed by legislation in many of the States for injuries resulting in death, that the same must have been for exemplary damages.
Such damages, in this character of case, were unknown to *599the common law, and are generally placed upon the ground, not that the sufferer is to be recompensed, but that the offender is to be punished. (Milwaukee Railroad Co. v. Arms, 1 Otto, 492; Sedg. on Meas, of Dam., 4th ed., ch. 18 and note; Smith v. Sherwood, 2 Tex., 463; Cole v. Tucker, 6 Tex., 268.)
Being both unknown to the common law and quasi-penal in their character, the cases in which exemplary damages are allowed should receive the careful consideration and scrutiny of the courts.
This suit is instituted under the provisions of section 26 of article 16 of the Constitution of 1876, wrhich reads as follows: “ Every person, corporation, or company that may commit a homicide through willful act, or omission, or gross neglect, shall be responsible in exemplary damages to the surviving husband, widow, heirs of his or her body, or such of them as there may be, without regard to any criminal proceeding that may or may not be had in relation to the homicide.” (Rev. Stats., art. 29.)
The standard to test the question of negligence vel non, is the common experience of mankind, and implies generally the want of that care and diligence which ordinarily prudent men would use to prevent injury under the circumstances of the particular ease. (Milwaukee Railroad Co. v. Arms, 1 Otto, 495; Railway Co. v. Oram, 49 Tex., 346.)
The Supreme Court of the United States, those of several States of the Union, and some of the highest English courts very much doubt the propriety of the usual distinction of slight, ordinary, and gross negligence, said to have been derived from the Roman law; and some of the ablest commentators upon that law'- and upon the civil code of France have wholly repudiated the theory, as without foundation on principles of natural justice, useless in practice, and presenting inextricable embarrassment and confusion. (Steamboat New World v. King, 16 How., (U. S.,) 474; Milwaukee Railroad Co. v. Arms, 1 Otto, 494.)
Our Constitution, however, in terms adopts the distinction, *600and in a case thereunder the jury should be so instructed by the court that they can properly apply the facts. As said by the Supreme Court of the United States in the case of Railroad Co. v. Arms: “ It is insisted, however, that where there is ‘gross negligence’ the jury can properly give exemplary damages. There are many cases to this eifect. The difficulty is, that they do not define the term with any accuracy; and if it be made the criterion by which to determine the liability of the carrier beyond the limit of indemnity, it would seem that a precise meaning should be given to it.” (1 Otto, 493.)
Although much embarrassment has arisen from the attempt to define the term, yet, as it is the very gravamen of the complaint in this case, unless defined the jury -would be left to pass upon most important rights without proper legal guidance. (Hyatt v. Adams, 16 Mich., 199.)
This was evident to the learned judge presiding, and hence he attempted to define it in his charge.
The charge first assumes a certain state of facts as constituting ordinary negligence, and the jury are then instructed that gross negligence is a greater or a higher degree of negligence than ordinary negligence.
It would be a natural consequence that gross negligence would be a higher, as slight negligence would be a lower, degree than ordinary negligence; but this general definition by comparison with ordinary negligence is not a satisfactory ■one, particularly when the degree of negligence to be understood by the jury is gross and not ordinary negligence. The ■one has as well-defined legal signification as the other, and the definition of the particular one under consideration should ■embrace its own marked legal characteristics.
. Gross negligence, to be the ground for exemplary damages, should be that entire want of care which would raise a presumption of a conscious indifference to consequences. Such indifference is morally criminal, and if it leads to actual injury may well be regarded as criminal in law. (Shear. & Red. *601on Neg., sec. 600; Milwaukee Railroad Co. v. Arms, 1 Otto, 495.)
A mere act of omission or non-feasance, to be punishable by exemplary damages, should reach the border-line of a quasi-criminal act of commission or malfeasance.
The testimony in this case tends to prove that the cotton press of appellant had been in use for some time; that it had been accustomed to discharge the steam and water as was done in this instance; that this was with the implied, if not the express consent and authority of the city of Galveston; that this was the first time an injury had happened to, doubtless, the many parties wrho had passed that way.
Under the circumstances of the case as presented by the record, we are of opinion that, even had there not been error in the charge as given, the plaintiff did not make out such a case of gross negligence as was contemplated by the Constitution to have entitled him to recover exemplary damages. (Milwaukee Railroad Co. v. Arms, 1 Otto, 495, note; Jackson v. Schmid, 14 La. Ann., 806.)
We are further of opinion, that the portion of the charge excepted to by the sixth error assigned, was calculated to mislead the jury, as they very probably inferred therefrom that the damages which might be recovered were to be proportioned to the injuries received by Mrs. Bradley.
The expression, “proportioned to such injuries,” found in the charge, is used substantially in our statute allowing compensatory damages for .injuries resulting in death. (Paschal’s Dig., art. 16; Rev. Stats., art. 2909.)
These statutes, following Lord Campbell’s act, in giving the rule to measure such compensatory or actual damages, provide that “ the jury may give such damages as they think proportioned to the injury resulting from such death, and the amount so recovered shall be divided amongst the person or persons entitled,” &c.
This evidently, means in proportion to the respective losses to the several parties entitled to recover, and not, as the jury *602might reasonably have inferred from the charge, in proportion to the pain and suffering caused by the injuries to the deceased. (March v. Walker, 48 Tex., 376.)
[Opinion delivered February 17, 1880.]The circumstances of the death might be proper for the consideration of the jury, who, it is presumed, might assess greater damages when the injury was willfully committed, under circumstances of aggravation, than when committed by the mere negative act of negligence. In this sense the damages might be proportioned to the injury, but not in the sense of the pain and suffering caused to the deceased.
It is assigned as error, that the court erred in erasing and interlining certain special charges asked by the defendant and in giving them to the jury, thus changed, as charges asked by the defendant.
It is the correct practice, when a special charge is asked, that the court give or refuse it as asked, or, if the judge desires to give it in a qualified form, to make the change separately and, distinctly from the charge as asked, and not, without the consent of the attorney, by erasure and interlineation.
It is the right of the party asking a special charge to have the same kept distinct from any qualifications made by the judge presiding, so that it may clearly appear to the appellate court what the charge wras as asked, and what modifications, if any, were made by the court below.
Upon inspection, however, of the original charges asked in this case, and which have been sent up with the record, if they were properly asked in the first instance, we do not find such material changes as demand a reversal on this ground.
For the other errors above indicated, the judgment is reversed and the cause remanded.
Reversed and remanded. ■