delivered the opinion of the court.
This action was instituted by the appellee against the appellant to recover damages for the death of the intestate, who was her husband, who, while in the employ of the appellant as conductor of a freight or construction train, was killed, as is alleged by gross carelessness and willful negligence of defendant, its agetats, etc., in the year 1892, and for which she sought to recover the sum of $40,000.
The answer may be treated as a denial of all the averments of the petition tending to show a right to recover, and also contains a plea of contributory negligence, all of which was controverted by the reply.
The first trial resulted in a verdict and judgment in favor of plaintiff for $10,000, which the circuit court set .aside, and awarded appellant a new trial. After considerable delay, another trial was had, and at the conclusion of plaintiff’s testimony the circuit court gave peremptory instructions to find for the defendant, and from that judgment plaintiff prosecuted an appeal to this court, and also prosecuted an appeal from the judgment awarding the new trial aforesaid. This court reversed the latter judgment, rendered under the peremptory instruction of the •court, but declined to order the circuit court to render a judgment upon the verdict for $10,000 damages.
After the return of the case to the circuit court, another trial was had, and the jury rendered a verdict in favor of the plaintiff (now appellee) for $13,500 for the loss of power to earn money, and $5,000 punitive damages; and, appellant’s motion for a new trial having been overruled, it prosecutes this appeal.
Many technical questions were raised during the trial, *369which we deem unnecessary to discuss or decide. But few or any of them are insisted on in this court. But it is earnestly contended for appellant that the court should have given a peremptory instruction to find for the defendant. The evidence in this case is as strong as, if not stronger than, at the tíme the court gave a peremptory instruction to find for the defendant, which was reversed by this court; and it may well be conceded that the decision of this court is conclusive as to the right of plaintiff to have the case submitted to a jury'; and, if plaintiff’s testimony authorized a submission ito the jury, it necessarily follows that no amount of testimony introduced by the defendant could authorize the court to take the case from rthe jury on a peremptory instruction. Such action would, in effect, nullify the right of trial by a jury. But we are not disposed to place our decision entirely, or even chiefly, upon the former opinion of this court. The evidence in this case conduces to show that the engine furnished by defendant to plaintiff’s intestate to use and operate was totally unfit for the use to which it was devoted, and this proposition is not seriously controverted by the appellant, but it insists that the deceased knew, or could by ordinary diligence have known of the defects of the engine, and, that being the case, it is the contention of appellant that no recovery can be had. It is also contended that the deceased was negligent in his attempt to couple the cars, at which time he lost his life; and it is ably and extensively argued that he was negligent in many respects.
It is a1 so contended for appellant that the court erred in giving and refusing instructions. We are, however, of opinion that the count did not err in refusing to give the instructions offered by appellant. Many of them tend to specially call attention to particular points in the evidence. *370Such instructions have been uniformly condemned by this court. We are further of opinion that the instructions given by the court, except instruction No. 7, were quite as favorable to appellant as it was entitled to, and correctly stated the law applicable to the case on trial.
It may be conceded that there was some testimony introduced conducing to show that the deceased knew, or might have known, of the defective condition of 'the engine; but the preponderance of the evidence tends to show that some of the material defects which caused the injury, or from which it resulted, were not known to deceased, and could not, with ordinary care on his part, have been discovered; and it was for the jury to weigh, and determine from all the facts and circumstances the truth of 'the matters in issue.
It is also insisted for appellant that the verdict for $13,-500 is excessive. But there is nothing in this case to indicate that the jury was influenced by passion or prejudice, and the question of damages has always been considered peculiarly within the province of the jury; and inasmuch as the jury heard all of the witnesses, and were presumably familiar with the facts and circumstances surrounding the case, we are of opinion that the verdict was not excessive in this case.
Instruction No. 7 reads as follows: “‘Gross negligence/ as used in these instructions, is the absence of ordinary care.”
It seems to us that this instruction would probably lead the jury to believe that they might And punitive damages in a case of mere ordinary negligence. We are not inclined to the opinion that, under the testimony in this case, ordinary negligence could or should be considered gross negligence; and inasmuch as the jury has separated *371its iindings as to compensatory and punitive damages, and inasmuch as this case has been in court for many years, we are of opinion that the ends of justice will be subserved by reversing so much of the verdict and judgment as allows any punitive damages, but allowing the verdict and judgment to the extent of $18,500 to stand.
The judgment appealed from is therefore reversed and the cause remanded, with directions to the court below to set aside the $5,000 verdict-and judgment for punitive damages, and to render judgment only for $13,500, and for proceedings consistent herewith.