delivered the opinion of the court.
This was an action for damages for an injury done to a passenger by reason of the carelessness and negligence of the driver of the car. The answer denied the material averments of the petition, and alleged that the plaintiff’s injuries were the result of his own negligence. It set up a defense also under the statute entitled “An act concerning street railroads in the city of St. Louis,” approved January 16, 1860. This act provided that “ said railroad companies shall not be liable for injuries occasioned by the getting off or on the cars at the front or forward end of the car.”
We have examined the evidence in order to see upon ujbat basis of facts the instructions were given or refused. It is not our province to weigh evidence or to determine the force or effect of conflicting testimony, but we may consider what the evidence on either side tended to prove, and what not. Instructions should be given or refused upon the case made by the evidence. Theoretical propositions, for which there is no proper foundation in the'evidence, or which suppose a different .state of the case from that which is proved, should not be given, for they directly tend to mislead the jury.
The case made upon the evidence contained in the record, so far as it is necessary to be stated for the purpose of determining whether there was any error in giving or refusing instructions, *85was substantially this: That the driver having gone to supper, the conductor ivas acting as driver in his absence ; that the plaintiff, a passenger, being intoxicated and scarcely knowing what he was about, arose from his seat when the car drew near 'to his place of residence, and went to the forward platform of the car, where he had left his tools, threw the tools off the car, and attempted himself to get off, before the driver had brought the car to a stop; that the driver seized hold of him with one hand to prevent him from jumping or falling off while the car was in motion; that a scuffle ensued, the driver making every effort to prevent him from falling off, Avith one hand, Avhilc Avith the other he was holding down the brakes, some others also interfering ; and that, in spite of all the driver could do, the man fell over the dashboard and under the wheels just before the car came to a stop ; that the forward wheel injured his arm, and that before he Avas extricated the horseá started and the next wheel went over his leg.
The mass and general tenor of the whole evidence would seem to shoAV clearly enough that the horses were scared in the noise and confusion, and started forward AYithout fault of the driver, while the expressions used by some of the plaintiff’s witnesses might imply, but do not distinctly say, that the driver of his own motion started the horses and drove on. My own impression would be that the jury could not have believed, upon the evidence, that the driver intentionally and willfully drove on while the man was under the car, at the risk of killing him, much less Avith any intent to do him harm. But the instructions will be considered upon the theory that there was some evidence before the jury from which they might be warranted in inferring negligence on the part of the driver in allowing the horses to start forward.
The effect and intention of the statute would seem to be that where the injury to the passenger is occasioned by his getting off or on the car at the forward platform, it shall be presumed, as a matter of law, that the negligence of the passenger himself contributed to produce the accident and injury, and it is therefore declared that the company shall not be liable in such case. A like construction was given to a somewhat similar statute provision in the case of Higgins v. Hann. & St. Jo. R.R. Co., 36 Mo. *86436. It is not supposed that this presumption would preclude the other party from showing that the injury was not occasioned by any such contributory negligence at all, but by some negligence in the officers or agents of the company, wholly independent of the fact that the passenger had attempted to get off or on the ear on the front platform. If the accident and injury were occasioned by reason of such attempt to get on or off the car at the front end, the defendant, under the statute, would be relieved from liability, though guilty of some negligence, and without reference to the question whether it was in fact the negligence of the one party or the other which actually caused or produced the injury. But again, if the injury were occasioned by the negligence of the driver, in intentionally starting the horses, or in carelessly allowing them to start forward, while the man was lying underneath the car, that would be an independent act of negligence for which the company might be liable; it would raise a question of the capacity, competency, and fitness of the servant for such a place.
The evidence clearly shows that the man was intoxicated, and that he imprudently attempted and persisted in his attempt to get off the car while it was in motion, and that the driver did all he could to prevent him and to save him from falling under the wheels. We find nothing in the evidence that could properly be taken as tending to prove that the driver intentionally and willfully or maliciously started the horses forward. The most that can fairly be claimed for it would be that some vague expressions, might tend to show negligence in the driver, or a want of that extraordinary care which the state of things would require in a prudent and careful man under like circumstances.
The first and third instructions given for the plaintiff, besides that they assumed some facts not warranted by the evidence, were directly in contravention of the statute as above explained. The seventh was erroneous, for the reason that there was nothing in the evidence that could justify such an instruction, and it tended to mislead the jury. To the ninth instruction we see no objection.
The first instruction refused for the defendant reads as follows: *87“If the jury find that the injuries complained of were occasioned by plaintiff while attempting to get off of the front or forward end of the defendant’s car, then they will find for the defendant.” This proposition recognized the statute presumption in relation to contributory negligence, and embraced the whole issue on behalf of the defendant; and we think it should have been given. The instructions which were given for the defendant cannot be said to have covered the same ground.
The refusal of the other instructions asked for the defendant, considered with those which were given for him, would riot amount to any error by which he could have been seriously prejudiced, and some of them were objectionable as placing the whole issue on particular facts.
The sixth instruction given for the plaintiff requires a particular notice. It told the jury, first, that if the negligence or misconduct were not gross, they would assess the damages at a reasonable compensation for the injury, suffering, and expenses, caused by such negligence; but, second, that if the negligence wrere gross, then they would find “liberal or exemplary damages, in their discretion, beyond the actual injury sustained by the plaintiff, for the sake of the example and punishment for such gross negligence.” This second proposition carries the idea of exemplary damages entirely beyond a full recompense for the injury sustained, and authorizes vindictive and punitory damages. This goes further than the law over allows in a case of this kind. Such damages certainly can he given, if ever in a civil case, only in cases where the injury-is intentionally, willfully, and maliciously done. (Goetz v. Ambs, 27 Mo. 33.) This instruction awards them upon gross negligence merely. In the case of Goetz v, Ambs, such damages were spoken of as exemplary damages. In Freidenheit v. Edmondson, 36 Mo. 226, we had occasion to consider what was properly meant by exemplary damages. It was a case of willful injury, and exemplary damages were defined to be merely a round compensation or an adequate recompense for the injury sustained. Such damages may serve for an example to others in like cases, and may so far be called exemplary. The question of punitory damages was not necessarily involved *88in that case; but a distinct intimation was given that the principle of administering punishment belonged rather to criminal than to civil jurisprudence. If the conduct of this driver were willful and malicious, with intent, to injure the plaintiff, ho might he liable to indictment for assault with intent to kill, or some other criminal offense; but his employer was not responsible for his crimes, nor liable for his acts of willful and malicious trespass. The company was answerable only for his negligence, or his incapacity or unskillfiilness in the performance of the duties assigned to him. In such case we have no hesitation in saying that punitory damages, or any damages beyond a full compensation for the injury sustained, cannot be allowed. It is, at least, vei-y questionable, upon principle and authority, whether damages for punishment can bo given in any civil action. My own opinion is that they cannot. Bat, independently of this question, the instruction was clearly erroneous.
The case not having been fairly tried under instructions which can ho regarded as correct, the judgment will he reversed and the case remanded.
The other judges concur.I dissent from so much of the above opinion as refers to the question of damages. David Wagner.