(dissenting).
The record presents a case where the question of punitive damages was properly left for the consideration of-the jury. The record shows that the conductor was familiar with the stations on the railroad; that the train arrived at Milltown before dark, and the conductor testified that Milltown and Low were very dissimilar in appearance; that there was a mill at Low, and that there was nothing at Milltown; that there was also a depot at Low and a sawmill and some residences on the hill, close by and in plain view, but there was nothing in sight at all at Milltown. In other words, it is apparent from the record in this ease that there was no possible chance for the conductor to be mistaken; that the place at which the plaintiff was put off was not her point of destination. The conductor was bound to have known that the train had not reached Low. Even a casual glance by the conductor at his surroundings, when the plaintiff was assisted off of the train, would have disclosed that the station was not Low, but some other station. This was the first time- the plaintiff ever was at either Milltown or Low; she did not know one station from the other. She was dependent entirely upon the trainmen for information. If the appellant can escape punishment for its conduct in this case, it is difficult to conceive of a case where punitive damages could be allowed, except where the evidence is clear, positive, and distinct *426of the purpose and intent to inflict a wrong. Such is not the law, as declared by all of the authorities. Whenever the evidence is such as to evince a reckless disregard of consequences, or when there is a conscious disregard of the rights of others, it is universally held that such conduct is gross, and authorizes the imposition of punitive damages.
The leading case in this state upon the subject of exemplary damages, and one which has been followed without one discordant note, and where the distinction is clearly drawn between acts which do and which do not justify the imposition of exemplary damages, is Chicago Railroad Company v. Scurr, 59 Miss. 456, 42 Am. Rep. 373. In that case, the plaintiff took passage at night on defendant’s train from Grenada to Torrence, holding a ticket to the latter place. Shortly before the train arrived at Torrence, the conductor became involved in an altercation with some immigrants who, by mistake, had gotten upon the wrong train, and also with a passenger who, without authority, had pulled the bell cord. Thrown off of his balance by these occurrences, the conductor carelessly and negligently permitted the train to run by Torrence without stopping, and was several miles beyond the depot before he recognized that there were several passengers on board for that point. The conductor took up the plaintiff’s ticket before reaching the next stop, Coffeeville, made to him a statement of the troubles with the immigrants, and with the person who had rung the bell cord, as an explanation and excuse for his own negligence in failing to stop at his place of destination, and promised to make arrangements for the speedy return of the plaintiff from Coffeeville without charge. In that case, the lower court authorized the jury to assess punitive damages. This court, reversing the judgment in the court below, says that, “by a long train of decisions in this state, which simply an*427nounce the rule everywhere recognized such damages are permissible only where there has been some element of intentional wrong, or, in the absence of intention, a negligence so gross as to evince a reckless disregard of consequences.” A careful and analytical examination of this opinion will disclose that carelessness in the sense of forgetfulness, something to which mankind génerally are prone, excludes the essential idea of reckless conduct. Scurr’s case, supra, may be said to be a case of momentary forgetfulness, caused or produced by the party’s attention having been attracted by other matters relating to his business, and hence negatives any willfulness or recklessness.
There is no conflict between the case of Y. & M. V. R. R. Co. v. Hughes, 50 South. 627, and Davis v. Railroad Co., 95 Miss. 540, 49 South. 179. These opinions were written by the same judge. In Hughes case, the destination point of the plaintiff was Harriston. The flagman came through the car and called the station Harriston, which was in fact Glass. Mrs. Hughes, thinking it was Harriston, arose and prepared to disembark. She testified that she asked the flagman if it was Harriston, and he replied, “Yes, ma’am,” and assisted her to alight. It was a mistake, pure and simple. The flagman said that he called the station Glass; that he saw plaintiff standing in the aisle preparing to get off, and volunteered to assist her, without any knowledge as to her destination point. In that case the court held that punitive damages were not proper. In Davis case, the-facts were that it was after dark, and the station Etta was called, and the conductor told plaintiff that they had reached Etta, and appellant then got off, but, before getting off, told the conductor that he was not familiar with the ground, and wanted to be certain that they were at his station. The conductor assured him that they were there, although the conductor himself *428had never been over the new route. In that case, this court says: “This was manifestly a case in which the jury should have been 'allowed to say whether, under all the circumstances, there was such gross negligence on the part of the railroad company, such conscious indifference to the rights of the plaintiff and the public, as warranted the imposition of punitive damages.”
The Davis case is on all fours with the case at bar. The conductor in this case says that he knew (indeed, he was bound to know) that the plaintiff’s destination point was Low. She testifies that the conductor came through the cars and announced Low. When he got to where the plaintiff was, he picked up her baggage, and she followed him, and “he set my baggage down on the ground, and got back on the train, and it pulled out. ’ ’ This. action on the part of the conductor was not simply an implied invitation to alight, but it was in the most emphatic manner an express invitation — in fact, it was practically a command — to alight. There is no evidence in the record that the conductor simply make a mistake in announcing the station, no evidence of momentary forgetfulness, and that this negligence was caused by anything, except inattention to his duties. But, even if he had made a mistake in announcing the station, and he really believed, when he carried out of the car plaintiff’s baggage and assisted her in alighting, that it was her station, yet after he (the conductor) had left the coach and reached the ground the surroundings clearly indicated to him that the train was not at Low, and that it was some other point. The slightest observation would have informed the conductor .that he was putting plaintiff off at the wrong place. The least attention-^-a mere glance at the surroundings — would have disclosed to him that he was putting this lady off at the wrong place. The court should not, under the circumstances, declare, as a matter of law, that the evidence was in*429sufficient to support the proposition that the conductor was guilty of gross negligence. These matters can be, and almost always are, established only by circumstances.
The day has long since passed when the question as to whether it is necessary, in order to recover punitive damages, for the evidence to be direct that the act was done intentionally or wantonly inflicted; but, upon the other hand, the proposition is well settled that, in the absence of intention or of a wanton injury, a negligence so gross as to evince a reckless disregard of consequences is sufficient to justify the imposition of punitive damages.
This court, in the recent case of Railroad Co. v. Dodds, 97 Miss. 869, 53 South. 409, says: “Punitive damages are only allowable when there exists some element of intentional wrong, or, in the absence of intention, there must be negligence so gross as to show a reckless disregard of consequences.” This expression has been used so frequently by this court — in fact, scarcely a report can be found published within the la'st fifty .years but what the rule as to the infliction of punitive damages is not laid down as in the Dodds case, supra, and not only by this court, but by almost every court in America — as to have become crystallized into a rule. Railroad Co. v. Brown, 77 Miss. 342, 28 South. 949. The difficulty lies, not so much in formulating a rule, but in applying the different facts and circumstances as they arise. It frequently occurs that the evidence is such as to justify the court in holding, as a matter of law, that punitive damages should not be inflicted. But whether the conduct is so reckless as to characterize it as gross, so as to justify the imposition of exemplary damages, is like the question of simple negligence or contributory negligence. In such instances, the rule is well settled that such questions *430should be submitted to the jury, if there be conflict in the evidence, or if the facts be undisputed, and reasonable men may draw different conclusions therefrom. The rule has been stated in different language in different cases; but the substance is 'the same.
In Nesbit v. City of Greenville, 69 Miss. 22, 10 South. 452, 30 Am. St. Rep. 521; Fulmer v. Railroad Co., 68 Miss. 355, 8 South. 517; Alabama & V. Railway Co. v. Summers, 68 Miss. 566, 10 South. 63; Railroad Co. v. Jobe, 69 Miss. 452, 10 South. 672, and Railroad Co. v. Turner, 71 Miss. 402, 14 South. 450, the rule is stated to be that, unless the evidence of negligence is so plain and convincing that all reasonable men would draw the same inference from the facts adduced, it is a question of fact for .the jury.
In the recent case of Southern Ry. Co. v. Floyd, 55 South. 288, the rule is thus stated: “Where the facts are conceded, but the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury, and not the judge, which is to be appealed to.” And, again, in Abernathy v. M., J. & K. C. R. R. Co., 97 Miss. 859, 53 South. 540, this court says: “It is a close case, an exceedingly close case, on the evidence ; and because it is so exceedingly close and doubtful, because reasonable men might differ as' to the question of contributory negligence under all the circumstances, for that very reason, the jury should have been left to solve the question.”
In Stevens v. Railroad Co., 81 Miss. 206, 32 South. 312, this court, quoting from Bell v. Railroad Co., 87 Miss. 234, 30 South. 821, says: “So many questions are integrated usually into the solution of the question of negligence- — it is so necessary to examine all the circumstances making up the situation in each case- — that it must be a rare case of negligence that the court will take *431from a jury.” While the judiciary always has, and it is to be hoped always will, represent the highest and the best thought of the age in which they live, yet it must be conceded that a jury, composed as it is of twelve men taken from the common walks of life, and who in their dealing and intercourse are daily and constantly brought in close touch to their fellowmen, are much better fitted and qualified to pass upon -such questions than the judge whose duties require him to be at his desk, far removed from the busy hum of trade and traffic and the doings of men. The last quarter of a century has witnessed many changes in the law, especially upon those questions dealing with those that pertain to the functions of the judge, and those which pertain to the functions of the jury. In this country, the jury system may be said to be a distinctive product; and more and more the courts are recognizing the wisdom of leaving to the jury the decisions of questions like negligence, contributory negligence, and reckless conduct. We find this illustrated, not only in the modern rulings of courts, but in legislation of recent years, among which may be found our own statute (chapter 135, p. 125, Laws 1910), wherein it is enacted that “all questions of negligence and contributory negligence shall be for the jury to determine. ”
The purpose of the legislature was that in all actions of negligence, whether gross, simple, or contributory, the question of negligence was to be left to the jury, if there be any evidence tending to prove the issue. It may be said that this was the rule without the statute. So it was; but this rule had not been observed by the courts in all cases, but in numerous instances the judge decided the question according to his own idea of what constituted negligence; and, in order to make the courts more careful in not trenching upon the province of the jury, and in not being so free and liberal with peremptory *432instructions, this statute was enacted. Its purpose was to substitute, where reasonable men might differ, the opinion of the jury for that of the judge. It was a recognition of the truthfulness of the words of Holy "Writ that “in a multitude of counsel there is safety.” The court should, under this statute, charge the jury what is negligence, contributory negligence, or gross negligence, as the case may be, and then leave to the jury the application of the law thus announced, to the proven facts. This is what the statute means. Of course, if there be no evidence at all showing, or tending to show, negligence, the court ■ still has the power to peremptorily charge the jury. The statute applies in this case, as the injuries complained of occurred after the passage of the statute. Its constitutionality was upheld in N. & S. R. R. Co. v. Crawford, 55 South. 596.
The writer of this opinion thinks that the verdict is excessive, and on that ground should be reduced, or otherwise reversed.