There can be no doubt, as urged by the counsel for the appellee, that juries may give exemplary or punitive damages, in cases of willful negligence or malice. But it is requisite such a case must be made.
We look in vain into the evidence of this cause for the proof of any willful negligence on the part of the Bridge Association. Some of the witnesses say, the bridge was unsafe before and at the time of the accident, whilst others, equally credible, give a contrary opinion. That the appellants were negligent in not providing additional precautions against the increased dangers occasioned by the construction of the railroad, and its operation by noisy machinery, may be true, but it is not of that degree denominated willful. To constitute willful negligence, the act done, or omitted to be done, must be intended. Mere neglect to keep a bridge in repair, cannot, ordinarily, be alleged to be willful; and we see no facts in this case to encourage such an idea.
It is of but little importance, whether' the bridge company permitted the railroad company the use of their bridge, or that it had been condemned for such use; the obligation pressed alike upon the bridge company to provide increased guards against new dangers. This they did not do, but it is very doubtful if the injury to the defendant was wholly caused from this neglect.
The proof shows, that the want of care of the plaintiff contributed very essentially to produce the accident. He saw and heard the locomotive; he had time and opportunity to get down and take his horses by the head, as prudent men do every day even when plowing in their fields, on the approach of a locomotive. It is required of them, that they shall put themselves to some little trouble to avoid these accidents. Even when the wagon was pushed on the railing, some of the witnesses say, he had time to get out and save himself. He did not attempt to do anything, but sat in his wagon, wrapped in his buffalo-skin, whipping his horses, sawing their mouths with the reins and bits, and so carelessly and unskillfully managing them as to have contributed very materially to produce the disaster.
We have said, repeatedly, in such actions for negligence, that the plaintiff, if not wholly free from fault, must be, as compared to the negligence of the defendant, so much less culpable as to incline the balance in his favor, both being in some fault.
It is true, the jury, by their finding, have ignored any negligence on the part of the plaintiff, and found willful negligence against the defendants. We do not think the testimony sustains them in such finding; that it is vastly the other way, and, taken *252in connection with the damages assessed, $5,750, manifests feeling and prejudice.
Our statute, L. 1853, p. 97, which is a copy of 9 and 10 Victoria, ch. 93, in case death ensues from such negligent acts, allows no more than five thousand dollars damages, however willful or malicious the act may be.
With what propriety the jury, in this case, for an injury, great, to be sure, but not endangering life, could find this verdict, if not influenced by prejudice, we do not well understand.
We think there is an absence of proof of willful negligence, and no foundation established for the damages awarded.
The tenth instruction was too broad, and must have had great weight with the jury in finding these damages. A man’s life may be in danger, and he receive no injury. The rule of damages, for personal injury inflicted by negligence, is loss of time during the cúre, and expense incurred in respect of it, the pain and suffering undergone by plaintiff, and any permanent injury, especially when it causes a disability from future exertion, and consequent pecuniary loss. The judgment is reversed, and the cause remanded.
Chief Justice Catón did not hear the argument, and gave no opinion.