The suit was for damages on account of injuries received by the appellee, through the negligence of the appellants, as common carriers of passengers.
The plaintiff’s witness, Hannon, was permitted to tell what the conductor of the tram on which the plaintiff and the witness were, at the time of the accident, said to bim a moment before the occurrence, about the bad condition of the road, and his running off the track five consecutive times before this trip These declarations can not be considered as any part of the res gestae, because they did not spring out of the accident, conduce to it, or have any necessary connection with it. If they are receivable, they must be so, as an admission of an agent binding on the defendant, of the bad condition of the road, In Fairlie vs. Hastings, 10 Vesey, 123, Sir William Grant has drawn *30so clear and correct a line of separation on this subject of the admissibility of statements made by an agent, that it is sufficiently decisive of this point merely to repeat what he says-: “ As a general proposition, what one man says not, upon oath, can not be evidence against another man. The exception must arise out of some peculiarity of situation coupled with the declaration. An agent may undoubtedly, within the scope of his authority, bind his principal by his agreement, and, in many cases, by his acts. What the agent has said may be what constitutes the agreement of the principal, or, the representations or statements made by him may be the foundation or the inducement to the agreement. Therefore, if writing is not necessary by law, evidence must be admitted, to prove that the agent did make that statement or representation. So, with regard to acts done, the words with which those acts are accompanied, frequently tend to determine their quality. The party, therefore, to be bound by the act, must be affected by the words. But, except in one or other of those ways, I do not know how what is said by an agent can be evidence against his principal. The mere assertion of a fact can not amount to proof of it, though it may have some relation to the business in which the person making that assertion was employed as agent. The admission of an agent can not be assimilated to the admission of the principal. A party is bound by his own admission, and is not permitted to contradict it. But it is impossible to say a man is precluded from questioning or contradicting any thing which any person has asserted as to him, as to his conduct or his agreement, merely because that person has been his agent. If any fact material to the interest of either party rests in the knowledge of an agent, it is to be proved by his testimony, not by his mere assertion. ”
It is true, there is a difference between the agent of a corporation and the agent of an individual, because the corporation, if it act or speak at all, can do so only through an agent. Some of its agents are in some instances the corporation itself, and others are its mere employees or *31servants. It would be equally unjust to charge it with all the statements of its agents, or to relieve it entirely from responsibility for such declarations. If the statements of the conductor had been made the day before the accident, they would not be supposed to be the admissions of the defendant, or to be a part of the res gestee. Their coincidence alone, without other connection, ean not change them character.
The plaintiff jumped from the car and received his injuries in doing so. Other passengers who remained in the car were not hurt. If he contributed to his own injury by want of proper care, he would not be entitled to recover. The degree of care required of him is in proportion to the degree and imminence of the danger. It was very necessary for him to show that his share in the transaction was innocent, and not incautious This he undertook to do by proving that the conductor and the brakeman leaped off, and that a passenger, with deliberation,' took up and dropped into a ditch a small boy, his relative, and then jumped off himself, as well as proving reasons given by this passenger and the brakeman at the time why they did so. We regard these declarations as a part of the res gestee, and more convincing of the reasonableness of abandoning the car, or, at least, the absence of any negligence, recklessness or undue fright, than the testimony to that effect of the persons themselves some time after the occurrence. — 1 Phil. T&v.Úi * lb
The accidqbq occurred to a freight train having one passenger car Attached. The witness was very properly permitted to say that he had frequently traveled on the road about the time of the accident, on both the passenger and freight trains, and therefore knew that passengers were received on the freight train, and charged the same price, as on the other.
It was a mere conjecture of the witness Hugghins that the car had been thrown off the track by a “low joint, ” or that there was a “low joint.” He could not, therefore, give an opinion as to which train had made it,
*32The testimony of this witness, that the freight trains, o£ which he was conductor, had run off the track seven or eight times within a month next preceding the injury to the plaintiff, was legitimate. — Shearman & Bedfield on Negligence, § 448.
There was no error in the plaintiff’s asking the assistant superintendent of the road, Ball, if the freight trains did not more frequently run off the track about the time of the accident, than the passenger trains.
The charges given and. refused, to which exception was taken, may best be considered together. The third and fourth direct charges were erroneous. The first, because it asserted that negligence sufficient only for the recovery of actual damages would authorize a verdict for greater damages. In cases of this sort there are but two degrees of negligence, and two measures-of damages for it. One, for which the actual damages, consisting of the expense of cure, time lost, and fair compensation for physical and mental suffering, and a permanent reduction of the power to earn money, may be' recovered. The other, gross negligence, for which exemplary or punitive damages may be given.
The second, because it conveyed to the jury the impression that the neglect to have the bell rope reach through the passenger car, would alone authorize a verdict of actual damages, at least, in favor of the plaintiff. This is not so, without such neglect was the cause of the injury. The jury was not left at liberty to find whether it was or not.
It seems to be clearly established by the American authorities that exemplary, vindictive, or punitive damages can never be recovered in actions upon any thing less than gross negligence. — Shearman & Bedfield on Negligence, §600.
Gross negligence is defined to be the want of even slight care and diligence. In determining what amounts to any specified degree of care in each particular case, the thing to be taken care of, and the danger to which it is exposed,, are the chief considerations. The law exacts a greater *33degree of care in respect to life, than to property. From those whose occupation involves great risk of life, it demands the utmost care. In such cases gross negligence is attained much short of that culpable degree which by the common law is denominated crime. Of course gross negligence may be of more or less aggravated character requiring a corresponding graduation of the amount of damages to be assessed. The punitive damages ought also to bear proportion to the actual damages sustained.
The court very properly charged the jury that greater damages ought not to be assessed against a corporation, than should be against an individual, - under the same circumstances. It is the province of the court to see that justice is done, and when the assessment is manifestly unjust, whether too small or excessive, a new trial should be granted. This, however, should be done, not arbitrarily, but in the exercise of a wise and just' discretion.
The judgment is reversed and the cause remanded.