The witness, L. F. Burgess, was not shown to know anything about the time or distance within which a train could be stopped under any circumstances or conditions. He should not, therefore, have been allowed to .give his opinion that defendant’s train could have been stopped on the occasion of the injury within a distance of two hundred yards. The error of receiving' this testimony was, however, cured by its subsequent exclusion. And the court’s right and power to thus correct itself cannot be defeated of exercise by the fact that the defendant was forced, in view of this testimony being improperly before the jury at one time, to introduce evidence which put it at a disadvantage after this was withdrawn. The defendant, it may be, was entitled to protection against such a result through a request to be allowed to withdraw the evidence it had been thus forced to offer, but the court was not bound to persist in the error it had committed.
The case made by one tendency of the evidence is this: *563A child, between seven and eight years of age was upon defendant’s track. A train was approaching at the speed of thirty-five or forty miles an hour. When four hundred yards from the child the engineer discovered it in its perilous condition. With due care and diligence, i. e. by the use of the means at his command, he could have stopped the train within íavo hundred yards and thus have avoided the injury to the child. Knowing this, he nevertheless failed to so stop his train. If he consciously failed to exercise the care it was his duty to exercise under the circumstances; if, having in mind what to do in order to save the child and having in hand the means to that end, he failed to use those means, this cannot be less than a conscious failure of obvious duty in AdeAV of probable disastrous consequences; and such failure of such duty, Avit'h the probable consequences standing out before him is at the least Avanton and reckless disregard of the child’s safety, for which the defendant ' Avould he liable, though the child’s own negligence may have contributed to the result. We understand that part of the court’s general charge to which an exception was reserved and charges 2, 4 and 5 given at plaintiff’s request to so state the law; and the court did not err in any of these instructions. Of course, an intent to injure on the part of defendant’s employes is not essential to liability, notAvithstanding contributory negligence. It is enough if they exhibit such Avantonness and recklessness as to probable consequences as implies a wdllingness to inflict injury, or an indifference as to whether injury is inflicted, though they may not have any such aflirmatÍA’'e purpose. Charge 2 correctly asserts this last proposition, Avlien referred to the evidence, in that it affirms that an intention on the part of the engineer to injure the plaintiff was not essential to recovery.
In the case of Ala. Gt. So. R. R. Co. v. Burgess, Admr. etc., 22 So Rep. 913, a charge, there numbered 7, much like charge No. 5 given for the plaintiff in this case, was criticised and condemned. It was as follows: “That all that is meant in this case by ‘wanton, willful or intentional negligence’ is the conscious failure, on the part of the defendant, to use reasonable care, under the circumstances, to avoid the injury after discoArering the danger of the child, if the jury find from the eAddence there Avas such failure and the injury resulted there*564from.” The ground of the criticism was that, the charge did not hypothesize a consciousness on the part of the defendant that the injury would probably result from the conscious failure to use the means at hand to avoid it. We.now think that this criticism was ill founded. The charge does hypothesize that the danger in which the child was had been discovered by the defendant’s employes and was known to them; it does hypothesize that there were means at hand known to the employes to avoid the injury which was imminent, and it does hypothesize that they consciously failed to use these means, and that in consequence thereof the injury was inflicted. It was not a mere negligent, inadvertent, unintentional failure to use the means at hand, of which willfulness and wantonness cannot be affirmed, even though they knew the danger; but it was a conscious omission to use a known means to a known end, after having discovered, and, therefore, at the. time knowing, the peril to be averted by such use. We now think it cannot be fairly said but that on the facts hypothesized in that charge the defendant’s employes were conscious that their omission to act would likely result in the injury complained of. Coleman, J., adheres to the views on this point he expressed in the case just cited, that said charge, on account of its. phraseology, was misleading.
It is sufficient to say in condemnation of charge 7, refused to defendant, that it exacts too high a degree of proof. It was not on the plaintiff to satisfy the jury absolutely of wantonness, willfulness or intentional wrong on the part of defendant’s employes, but only to reasonably satisfy them. — Torrey v. Burney, 113 Ala. 496.
Where, as in this case, the recovery must be rested upon the wanton or willful misconduct of the defendant’s employes, and the damages may be punitive as well as compensatory in character, and where, as here, compensatory damages are claimed for physical and mental pain and suffering, the court does not err in instructing the jury that if the plaintiff is entitled to recover at all they may award him such damages as they see proper to assess not in excess of the amount claimed in the complaint. Such a charge in truth and in fact refers the assessment to the sound discretion of the jury, *565If it be supposed or feared that the jury might not so understand it, or might by it be misled to an unbridled and capricious assessment, an explanatory instruction should be requested. — Ala. Gt. So. R. R. Co. v. Bailey, 112 Ala. 167; M. & E. R’y Co. v. Mallette, 92 Ala. 209. And when to the consideration that physical and mental pain and suffering were to be compensated for in this case, and that accurate measurement of such compensation is not practicable, is added the consideration that exemplary and punitive damages were within the sound. discretion of the jury in this case, we do not see our way to the conclusion that the assessment of seven thousand dollars ivas excessive. Whether, conceding that assessment to have been excessive, and five thous- and dollars not to be excessive, the trial court should have set the verdict aside instead of requiring plaintiff to remit two thousand as a condition to overruling the motion to vacate the verdict, we need not decide. It is, therefore, the writer’s opinion that the assessment of seven thousand dollars ivas not excessive, and,- of course, that the reduced Arerdict Avas not excessive, and should be alloAved to stand. A majority of the court, however, holds that the reduced A'-erdict was excessive, and that the trial court should haAre granted a neAV trial on that ground. For this error the judgment must be reversed. The cause is remanded.
Reversed and remanded.