ON REHEARING.
Hide, C. J.1. Counsel have forcibly re-argued this case and presented, strongly fortified by argument, the dissenting opinion of the late Mr. Justice Riddick. That is one of the strong opinions of a strong man. The point of difference between it and the opinion of the majority of the court is in the view taken of the evidence, and not in the law. The writer of -that opinion and the judge who agreed with him in it were convinced that Kirby was not standing in plain view, waving his flag at the end of the draw, when the train came in sight. If the majority could see the facts that way, there would be no escaping the conclusion stated in the opinion of Mr. Justice Riddick.
There was a conflict in the testimony. Which was the truth cannot be known here. The jury has accepted that version which placed Kirby at the end of the draw, waving his flag in plain view when the train came in sight, some thousand feet distant. If that be taken as an established fact, and the verdict settled it, then, as the majority see it, there can be no escaping the sequence, which was that there was a “conscious" indifference to consequences from which malice may be inferred.” It is no answer to say that this version must not be accepted because the engineer would not recklessly run into an open bridge to his owr certain destruction, for it was not visibly opened. The partially raised rails, only a few inches above the others, could not possibly have been seen by the engineer until he was on the bridge, if then. So far as appearances went, he was merely refusing to obey a stop signal, and to his eye the bridge was ready for his train.
Counsel for appellant have presented inconsistencies and contradictions in the testimony of the four witnesses who place Kirby at that point. Each of them saw the accident from a different place. Each has told the story as differently viewed; and it is to be expected that there would be inconsistencies and contradictions in such testimony. But as to the essential fact — that before the train came in sight Kirby was standing on the west end of the draw waving his flag — there is nothing to contradict the testimony of any one of them, and nothing that the court can see which weakens the force of their respective statements as to this fact.
2. Counsel insist that there should be a reversal for the error in the oral instruction, and say that the erroneous instruction cannot be cured by a correct one. But the erroneous instruction was so quickly withdrawn, and the correct instruction substituted immediately upon attention being called to the error, that the court is unable to see that any prejudice could possibly have resulted.
Another error is called to the attention of the court in this oral charge of the judge, and that is, that he told the jury if the requisite elements were present “you will find punitive or exemplary damages,” instead of saying that they were authorised to find, etc. It is true that exemplary damages are not required to be given in any case; merely that certain facts may au-. thorize a jury to award them in their discretion. 2 Thompson on Trials, § 625; 1 Sedgwick on Damages, § 387.
This error occurred in the paragraph of the oral charge that has heretofore been noticed as erroneous. Objection being made to this paragraph by the defendant’s attorney, the plaintiff’s attorney at once saw that the court had erroneously left out the elements of grossness, wantonness and wilfullness required, and called the court’s attention to it; and the court at once accepted the correction, and turned to the jury and said: “Yes, gentlemen of the jury, before you can find punitive damages in any amount, you must find first that the negligence of the defendant, if any, was gross, wanton and wilful.”
This was a correct instruction, and was given in place of the paragraph which had just been objected to, which contained the objectionable phrase now complained of, as well as the objectionable phrase heretofore complained of. Evidently, the abjection was taken to the absence of the gross, wanton and wilful factors, and that was what the court inserted; and his attention was not called to the fact that he had said, “will find,” instead of “may find.” The objection to this part of the charge by defendant’s attorney was as follows: “Defendant at the time objected and excepted to that part of the court’s oral charge to the jury upon the question of punitive or exemplary damages, to the effect that if there was negligence upon the part of defendant and no negligence upon the part of the deceased, the jury might find punitive or exemplary damages.”
Thus it is seen that the defendant’s attorney at the time construed this as a mere authorization to find exemplary damages, and not as direction to do so. It must be borne in mind that this was a general statement unnecessarily explanatory of the instructions which had been given, one of which correctly stated that such damages might be added if the jury thought proper under the circumstances.
The court has given unusual attention to this case, both upon its first consideration and now upon this consideration, because it has recognized that it presented a difficult question of fact, and one upon which the minds of the judges of the court have drawn different conclusions. But the majority is of the opinion -that the conclusion heretofore reached was the correct one, and the motion for rehearing is denied.