(dissenting). — I cannot concur in the affirmance of this judgment. I think it was a case in which the jury might probably have rendered a verdict against the defendant; but I do not think it was a case under the issues and the evidence, in which the trial court could, as he did in this case, direct a verdict for plaintiff. I think it was a case for the jury to say whether or not either of the issues was proven.
I do not mean to say that the trial court did in form direct the verdict, but it did so, in effect, more than once. If the trial court said to the jury, in its charges, what the record recites it did, the verdict was in effect directed several times. It is very true that the court *374did, in terms and in form, say to the jury that it was a question for the jury and not for the court, and it declined to give the affirmative instruction in form, but, nevertheless, gave it in effect.
I do not mean to intimate that the trial court so intended the effect of its charge, but, on the contrary, that it intended the effect to be what it was in form, and what it ought to have been, to warrant the submission of the disputed questions of fact to the jury for determination.
I also know that my Brothers have the same opinion as to the effect of the charge of the trial court, which that court had of it; but I think they err in their judgment, and I shall attempt to state the reason for my dissent.
There were but two issues in this case: First, did the defendant’s servants or agents, acting within the line and scope of their employment, negligently run the car over.the plaintiff? Second, did they wantonly or willfully run the car over the plaintiff?
There were no pleas of contributory negligence, or of assumption of risk, or any other pleas of confession and avoidance. The issues were thus few, simple, and clear-cut.
There was no dispute in the evidence that a street car of the defendant ran over the plaintiff’s feet and legs, and thus maimed him and made a cripple of him for life. The injuries were unquestionably serious and permanent.
The defendant claimed — and its evidence, standing alone, unquestionably established the fact — that the injury was not inflicted by its agents or servants, either negligently, wantonly, or willfully, or in any other mode or manner; but that the injury was the result of an inevitable accident, and was due solely to the un*375alterable laws of nature; and that its agents and servants, not only did not cause the injury, but that no) human power or foresight could, under the circumstances, have prevented the injury.
I concede that the plaintiff had some evidence Avhich made this question, under our practice, one for the jury; yet, if the unerring truth could speak, it would proclaim the' catastrophe an unavoidable accident.
The real and only disputed and concrete question was whether the .injury was inflicted by the defendant’s motorman negligently or willfully, or whether it was an inevitable and unavoidable aceident.
If the evidence of the motorman was true — and he had the best opportunity of knowing the facts — the injury, accident, and result was unavoidable; no human agency in control of the car could have prevented the result. He denies emphatically that he or any other agent or servant inflicted the injury.
Notwithstanding these issues and this evidence, the trial court, among other things, charged the jury as follows: “It is admitted that the plaintiff was injured by the agents and servants of defendant.” If so, then this was an end of this case, except as to the question whether the injury was negligently, wantonly, or willfully inflicted, and the question of the amount of the damages. This charge, in effect, directed a verdict for plaintiff. The formal affirmative charge, with the usual hypothesis, would not be as effective to produce a verdict for the plaintiff as this charge; for the reason that the formal charge requires that the jury must “believe the evidence,” while the charge given says in effect that it is admitted that the plaintiff is entitled to recover, and that the only question for the jury to determine is whether the wrong was done negligently or wantonly, together with the question of the amount of damages.
*376That the jury so understood this charge is made clear to my mind by what was shown on the application for a new trial. It was there made to appear that the only question which troubled the jury was whether they could find for the plaintiff on one count only, or whether they should find for him under both, or whether they had to say, by their verdict, on which count they found for the plaintiff.
To test the effect of this charge, suppose the defendant had filed only one plea, and that plea had followed the charge as far as practical; what would have been the legal effect of the plea? The plaintiff would have been entitled to a judgment by confession upon this plea. If so, was the charge less effective?
The majority opinion answers this by saying: Yes, but the court in other pai*ts of its charge charged the law correctly, and we will not reverse as for this part of the charge; the other parts explained this part so as to cure it of error. But the reply to this answer is that the statutes of this state' expressly authorize a defendant to plead several inconsistent pleas; whereas, there is no statute authorizing the court to give several inconsistent charges.
To show that the majority of my Brothers are wrong in their conclusion, let us suppose that the court had not only charged the law correctly in other parts of the charge, but, immediately after the charge complained of, had directed a verdict for the defendant; and the jury, following the first instruction, had found for the plaintiff: Could it be said that the error was without injury, or that it was cured by the last charge in favor of the defendant? Surely not. If this is true, then how can it be said that this charge, or this part of the main charge, or other parts hereinafter complained of, were without injury to the defendant?
*377With all due deference to the opinion of my Brothers, if this charge, or this part of the main charge of the court, was not a charge upon the effect of the evidence, in violation of the mandate of the statute, then I confess I am at a loss to know ’what is necessary to constitute a violation of that statute.
The above is what appears to me'to be the effect of the charge as a matter of law. Let us now examine it as a matter of fact. I do not think that it is shown by the record, which purports to contain all the pleadings and all the evidence, that it was admitted that the defendant’s agents and servants inflicted the injury complained of. If this be true, then it must be admitted that every injury to a. child of very tender years, by a street car’s striking it, is caused by the agents or servants of the street car company. I do not believe that this follows either as a matter of fact or matter of law.
Suppose that a child is standing behind a tree, close to an approaching street car, or on a fence or a porch near an approaching car, and that suddenly and without warning he jumps in front of the moving car and is injured by the car’s striking him: Can it be truthfully said that the motorman or the conductor inflicted or caused the injuries? I think not. Suppose that a child hides under a trestle or in an open culvert and, as the car is passing over him, protrudes Ms head in the way of the passing car, and is killed by contact therewith, the agents or servants in charge of the' car knowing nothing of his presence, or of the injury: Is it possible that they inflicted or caused the injury?
Now, let me put the éxact case, presented by this record, according to the person best situated to know the facts, if he spoke the truth; and as to whether he did or did not was certainly a question' for the jury. He (the motorman) said: “I was keeping a lookout in *378front of me, to see if there was anything or anybody crossing the street that would be in my way at all. There was not any one in the street at all until I got to Fourth street, and when I got there two' little boys were standing on the'left of the car track or the east side — I suppose it was about 10 or 12 feet from the track — and then one of the little boys came out from the corner of the church and ran across where the other little boys were. Then I looked away to see about the other children coming out of the church, looking to see if any of them were crossing the track. As I glanced back, the little fellow had started back across the street, right in front of my car, about 6 or 7 feet from the car when I saw him. The children were on the east side of the track, about 10 or 12 feet from the east rail and standing near the corner of Mr. Hyde’s residence. The little boy that got hurt came across the track from towards the church. He went to where the two little boys were standing. He went about 10 or 12 feet east of the track before he turned back. My car was then about even with the north sidewalk of Fourth street. I. thought the little fellow was safe, and I glanced across to the church to see about the other children coming out of the church. When I looked at him again he was within 6 or 7 feet of the car going in the same direction he came from. He was running as fast as he could. I applied my brakes as soon as I could, and when I saw that was not going to save him I reversed my current; but by the time I could apply my brakes the car had struck him, and the motion of the car carried it over him.” Further on, he says: “I would not have hurt that child for anything in this world. I am sure I did everything in my power to stop that car.”
Does this evidence justify the court in charging, as it did charge, that it is admitted that the plaintiff was in*379jured by the agents and servants of the defendant? How can an agency inflict an injury which that agency could not prevent or even anticipate? Is it good English, good logic, good morals or good law, to say that I inflicted an injury because I could not have prevented it? If I own a millpond, or a field, and a child under seven years of age is drowned in that pond, or kills itself. by running against a stump in that field, did I cause the death, for no other reason than that I owned or controlled the millpond or the field? Surely not. That is what this charge in legal effect, under the pleading and proof in this case, in my judgment, asserts. In my humble judgment it is wrong in fact, in morals, and in law.
The court, among other things, charged the jury that the motorman “should keep his car so far under proper control as to avoid injury to persons on foot or in vehicles,” and, further on, leaving the abstract propositions as to the duty of motorman, and coming to the concrete case, said: “The motorman should have had the means at his command by the exercise of reasonable care and skill to stop the.car upon the appearance of danger to the plaintiff.”
I submit candidly that if these charges, or parts of the main charge, in the case, state the law, then it is a physical and legal impossibility for street cars to run upon or across the public highways, without being liable in damages for every injury inflicted by the collision of a moving car, with “persons on foot or in vehicles.” Of course, I know my Brothers never intended to decide this, and are not conscious of the fact that they have decided; but I submit that a close and careful study of this record, and of the charge of the trial court, such as I have bestowed upon it, will convince the trial *380court and my Brothers that such is the effect of those portions of the oral charge of the court.
The trial court likewise erred to the prejudice of the defendant, in its charge to the jury as to how they should ascertain the amount of compensatory damages which plaintiff might recover. How is it possible for a court to charge a jury in a case like this, and as the majority opinion vividly pictures it, that in fixing the amount of damages they may consult their experience and award such amount as in their discretion they deem fair? Does the amount of compensation to which a plaintiff is entitled for a given injury depend upon the personal experience of the individual jurors awarding it, and does the amount rest in their discretion?
While, of course, the amount is not liquidated and cannot be made certain except by the verdict of the jury, and the jurors are called for the purpose of ascertaining the amount and thus making it certain, liquidating it, yet they must be guided in this matter by the evidence, and not by their experience and discretion. This court has said that it is error to charge the jury that the amount of punitive damages rests solely within the unbridled discretion of the jury; yet punitive damages does rest largely, of necessity, in the discretion of the jury, because it does not at all depend upon the extent or severity of the injury, as does compensatory damages, but is intended only as a punishment and is to be fixed by the jury.
I cannot agree with the majority in holding that the giving of an erroneous charge or instruction to a jury is cured by the court’s giving (before or afterwards) a correct charge, whether they both be in the same sentence or in different sentences. How can this court know that the jury did not obey the bad charge and disregard the correct one? The jury cannot obey or regard *381both if they are diametrically opposed, as in this case, one in accordance with the law, and the other opposed thereto. Is there not a strong presumption that they obeyed the bad charge, .and disregarded the good one, when they found a verdict as directed by the bad charge?
I mate this last statement for the reason that the trial court did, in the main charge, (as to part of which I am complaining), instruct the jury fully and correctly upon all the questions discussed by me; but the court did not stop at this, it repeated and repeated, and in the instances which I have pointed out (and in others, not indicated) it charged the law incorrectly, even to the extent of charging the defendant out of the court and, in effect though not in terms, directing the jury to find a verdict for the plaintiff.
In order to test the correctness and propriety of the rule announced in this case, as to reviewing rulings of trial courts upon exceptions to the main charge — remembering the other rules of construction that enough of the charge must be set out to show the sense and meaning in which the instruction complained of was used, and that the court cannot, in the main charge, instruct upon the effect of the evidence, because the statute prohibits it — suppose the trial court correctly and fully charges the jury upon all phases of the evidence and upon all the issues (as was done in this case), and then concludes his charge in the following sentence: “This is a case in which the jury, and not the court must determine who is entitled to a verdict; but the court charges you that the plaintiff ought to have a verdict and that the defendant, also, is entitled to a verdict.”
Under the rule declared by the majority in this case, no possible exception can be taken to this charge, or part of the main charge, which will work a reversal. If *382the exception is to the whole quoted sentence, the court will say: We can divide that sentence into three, and one or the other will of necessity be correct in every case, or it will be in favor of the party excepting, and of which he complains. If he segregates the part to which he excepts from its context with the other parts of the sentence in which it is used, and therefore shows it to be bad, the appellate court, of course, cannot know whether the part excepted to was good or bad. Its context might show that the part excepted to was perfectly correct and proper.
If the rule applied in this case is to be used in connection with the other rules heretofore announced and applied, as to exceptions to parts of the main charge, then, I submit, it is impracticable, if not impossible, to reverse a trial court as to improper instructions to the jury, where the improper instruction is used in the same connection and in the same sentence with a correct proposition.