delivered the opinion of the court.
From the record in this case, it appears that the collision took place where the railroad crosses a private farm-crossing, on land belonging to respondent. From the peculiar topography of the country, and the location of appellant’s track, it seems that the cars could not be observed by a person travelling in the direction in which the respondent was going, till they were immediately up to the crossing. The parties were each travelling their respective roads; each had a right to exercise this privilege, in a lawful manner, without hindrance or disturbance; and each was equally bound to use the same degree of caution, care and diligence to avoid collisions or accidents. If either party, by his negligence, contributed to the catastrophe, he must suffer the consequences, unless the other party was guilty of misconduct still more gross and culpable, and could have prevented it by the exercise of reasonable precaution.
Negligence is the want of that care which men of common sense and common prudence ordinarily exercise in like em*364ployments. Railroad companies, owing to the dangerous character of the machinery and vehicles they operate, will be held to the use of the greatest caution and skill in the management of their business : but this extraordinary degree of care and skill required on their part will not exonerate others who have been wanting in prudence, or guilty of negligence. The question of negligence is one of fact, to be submitted to the jury under all the circumstances, and to be determined by them upon their view of what prudence and skill required. (Redf. Railw. 393 ; Macon & W. R.R. Co. v. Davis, 18 Geo. 679.)
In this case much evidence was introduced, and it was very contradictory in its character. Some of the instructions given for the respondent were objectionable; but we are of the opinion that their objectionable features were counteracted by those given for the appellant, and that all, taken-together, presented the law fairly, with the exception which we shall presently notice.
The ground urged for a reversal, that the damages are too large, is not good here. There was evidence to go the jury, a'nd where that is the case it is their peculiar province, under proper instructions from the court, to determine the amount. Before we are at liberty to interfere with a verdict, it must appear at first blush that the damages are flagrantly excessive, or that the jury have been influenced by passion, prejudice, or partiality. When there is any evidence to support the verdict, it will not be distui’bed; but this court will interfere when there is no evidence, or when the court below gives an instruction which is not authorized by the evidence.
The court, in the sixth instruction given at the instance of the respondent, instructed the jury, that if they believed, from the evidence in the case, that the injury complained of was wilfully or recklessly done by the defendant, then they were not confined to the actual damages sustained by the plaintiff, but might give such exemplary damages as the circumstances of the case warranted.
To authorize the giving of exemplary or vindictive damages, *365either malice, violence, oppression, or wanton recklessness, must mingle in the controversy and form one of the chief ingredients. The act complained of must partake something of a criminal or wanton nature, else the amount sought to be recovered will be confined to compensation; but compensation will be intended to amount to full satisfaction, and the jury must measure this as well as they can, taking into consideration the whole injury which was sustained, in all its parts — as suffering, bodily and mentally ; loss of time, or of money, or of labor; and it will also include prospective losses and expenses.
And in case of collision, like the present, if it was brought about by the wantonness, recklessness, or gross negligence, of those in charge of the train, it is permissible to give exemplary damages; but for a mere casualty or collision, without wantonness, recklessness, or gross negligence, exemplary damages should not be awarded. (Hawkins & Co. v. Riley, 17 B. Mon. 101.) In this case there is no evidence whatever of either recklessness, wantonness, or gross negligence, on the part of those conducting the railroad train, and consequently nothing on which to predicate the instruction. The instruction asserts a correct abstract proposition of law, but there is no evidence to support it.
Courts should not state propositions of law hypothetically when there is no evidence in the case applicable to them. They are calculated to mislead the jury.
For the giving of this last instruction the judgment is reversed and the cause remanded.
Judge Lovelace concurs ; Judge Holmes, having been of counsel, did not sit.