Such absence of care by appellant’s servants was inferable from the proof as well warranted a recovery by plaintiff.
1. Exemplary damages — Negmalfce! The cause appears to have been fairly tried upon instL ' A so far as determining the fact of defendant’s liability and ascertaining plaintiff’s compensation were concerned. But we are of opinion that the court erred in giving the third prayer of plaintiff respecting exemplary damages. The testimony does not present a case which demands more of the defendant than compensation. The element of willfulness or conscious indifference to consequences, from which malice may be inferred, is lacking. The engineer of defendant appears to have occasioned the injury while in the performance of his duty. He is not shown to have acted otherwise' than with a careless unconsciousness of plaintiff’s possible danger. Kelly v. McDonald, 39 Ark., 387; Railway v. Arms, 91 U. S., 489; Railway v. Quigley, 21 How., 202; Field on Damages, sec. 34; Sutherland on Damages, 724.
2. Remittitur of exem pla ry Sallowed116 Having reached the foregoing conclusion, it was referred to counsel for argument, whether the court had the right to *11permit a remittitur (in case the appellee saw fit to so proceed) as a condition to an affirmance.
We have given the subject the consideration which its importance demands.
The history of the practice seems to be the same in the various States. It was originally held that a remittitur could be entered only in actions ex contractu, or incases of damage to property where the value of the property furnished an exact measure of damages properly recoverable. And further that it was permissible only where the remittittir could cure the only error complained of. Such were the decisions in this State, and such the rule of this court. Fowler v. Johnson, 11 Ark., 280; Hirsch v. Patterson, 23 Ark., 112; Hardy's Ex. ex parte, 26 Ark., 94; Hamlett v. Tallman, 30 Ark., 505; Dodds v. Roane, 36 Ark., 511; Ferguson v. Fargason, 38 Ark., 238.
Railway v. Barker and wife, 39 Ark., 491, was the first departure from the previous limits, and established in this State the practice, prevalent in most others, of allowing a.remittitur in all cases, where excessive damages were the only element of error.
In Blunt v. Little, 3 Mason, 102, Judge Story says that a verdict for damages should not lightly be disturbed on the ground of excessiveness, and that, in permitting a remittitur where such excessiveness was the only error, he felt that he went to the limit of the law. And so we think. The case of Railway v. Barker is certainly “the limit of the law.” In this cause the jury had properly before them the plaintiff’s expenses, his loss of time, his diminished capacity for labor, and his pain, anguish and suffering. The difficulties which would beset a court in determining the justness or excessiveness of a verdict based upon these premises alone would not be inconsiderable. But superadd the element of punitive damages erroneously allowed, and the process by which the court is to dissect the verdict, eliminate the error, eliminate *12the excess of compensation and settle upon the exact sum which plaintiff’s case entitles him to have “passeth all understanding.”
To attempt it, we think, would be a violation of the spirit of the Constitution, which intends that every litigant shall have a trial of his cause before an impartial jury upon proper declarations of the law.
Reversed and remanded.
Battle and Hemingway dissent.