which the evidence shows he has sustained for his loss of time, and the pain and sufferings, which were the result of such assault; and second, in addition to such actual damages, such sum as, in your judgment, is reasonable and just, by way of punishment, as an example to the defendant and others, to deter him and others from committing such act." Had this portion of the charge been excepted to on the ground that the court directed the jury to give the plaintiff punitive damages in addition to actual damages, we probably would have sustained it, but no such exception was taken. The language used in the exception is this: "The defendant excepts to so much of the charge as reads (here quoting the same) and each and every part thereof, because it is very improper in not distinguishing pain and suffering from the actual damage, and in the effect of the same, this further damage, viz: pain and suffering, defendant could not have the benefit of the mitigating circumstances if any existed."

So far as this exception is general in its terms, it must be disregarded for the simple reason that the portion of the charge quoted which relates to actual damages was substantially correct, and it is well settled that a general exception to a portion of a charge embracing more than one proposition, is of no avail on review if any one of the propositions is correct. Butler v. Carns, 37 Wis. 61; Sabine v. Fisher, 37. Wis. 376; Nisbet v. Gill, 38 Wis. 657. But this exception is based wholly on the ground that the court failed to distinguish pain and suffering from actual damage, and thereby prevented the defendant from having the benefit of reducing the amount of the damages, arising from pain and suffering by mitigating circumstances. But that is the very question determined adversely to the defendant in Fenelon v. Butts, supra. It is there held that they are not distinguishable. We must, therefore, hold, that where an exception to a portion of a charge expressly states the ground upon which it is made, it must be treated as a special exception upon the ground stated; and where such exception is stated to be upon one ground which can not be sustained, it will not be enlarged and extended so as to serve as an exception upon another and different ground which might have been sustained. Miles v. Ogden, unreported. 4 Wis. L. N., weekly, p. 273; daily, No. 191.

Where an exception is to a portion of a charge quoted, and to each and every part thereof, upon a particular ground specified, it will be held inoperative except as to the ground particularly specified. Yates v. Bachley, 33 Wis. 185.

3. The same observations are applicable to the third exception to a portion of the charge; and particularly to the fourth exception to a portion of the charge, which may have been subject to the objection of directing punitive damages in addition to compensatory damages, had the same been excepted to on that ground. Each of these two portious of the charge may each be regarded as somewhat general in its terms, but we do not

think that either is obnoxious to the criticism that it gave the jury liberty to find a verdict according to their own notions of right and wrong, regardless of the evidence in the case.. On the contrary, we think the jury were bound by their oaths to regard what was said to them by the court in his charge as having reference only to the case and the evidence given therein on the rial before them. Certainly if the defendant desired more definite instructions he should have so requested, and, not having done so, he can not be heard to complain without exception, on the ground that the portion of the charge given was indefinite and uncertain. Trowbridge v. Sickler, 11 N. W. R. 581; S. C. Wis. L. N. 221; Stilling v. Town of Thorp,4 Wis. L. N. 257; s. c., 11 N. W. R. 906. It is true, as stated by counsel, that the court no where told the jury that punitive damages might be wholly defeated, but it is also true that the court was not requested so to charge, and hence, for the reasons given, such omission is not ground for reversal.

4. The court had charged the jury that: "The fact that fines have been imposed, and he (the defendant) has been punished by the State, may be taken into consideration by the jury in mitigation of the damages," and counsel urge that the portion of the charge respecting punitive damages, left it doubtful where the reduction would come in for fines and punishment already had for the same offense. But as already indicated, the best method of preventing the jury from being misled by a doubtful portion of a charge, is to request an instruction upon the subject which is not doubtful. Besides, it has been held by courts entitled to great respect, that: "The imposition of a fine in a criminal proceeding for assault and battery, will not bar or mitigate the party's liability to exemplary damages in a civil suit for the same act." Hoodley v. Watson, 45 Vt. 289; Cook v. Ellis, 6 Hill, 466; McWilliams v. Bragg, 3 Wis. 424; Brown v. Swineford, 44 Wis. 282. This ruling, however, is merely suggested, as the question is not necessarily before us for consideration.

5. Should the judgment be reversed because the plaintiff, on the defendant's motion for a new trial for excessive damages, was allowed to remit one hundred dollars from the amount of the verdiet, and have judgment for the balance with costs? In urging that the court had no such power, counsel cite, among other cases, Potter v. Railroad, 22 Wis. 619; Goodno v. Oshkosh, 28 Wis. 306; Nudd v. Wells, 11 Wis. 415. In Potter v. Railroad, the trial court refused to set aside the verdict, and this court was asked to allow the plaintiff to remit whatever should be deemed an excess of damage, but it declined to exercise any such power, and sent the cause back for a new trial with certain advisory remarks. The same course was followed in Goodno v. Oshkosh. See also Bass v. Railroad, 39 Wis. 636; Page v. Sumpter, 11 N. W. R. 60; Cassin v. Delaney, 38 N. Y. 178. But that question is not in this case, for here the deduction was allowed by the trial court.

The right to allow such deduction in cases where the amount could be readily ascertained from the evidence with certainty, would not, we presume, be questioned; but whether the power exists in actions of tort where the amount which should be deducted can not be ascertained with any degree of certainty, is a question upon which the authorities are by no means uniforma. Nudd v. Wells, supra, was an action against an express company to recover damages for the non-delivery of a box of machinery, and the plaintiff obtained a verdict of $1,087, and on motion to set aside the verdict and for a new trial, the same was granted, unless the plaintiff consented to reduce the verdict to $821.21, which he did and judgment was entered thereon accordingly, and the defendant appealed to this court. In giving the opinion of the court. Mr. Justice Paine said: "The practice of remitting where the illegal part is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, is well settled. * But it ought not to be carried so far as to allow the court, when a jury has obviously mistaken the 'aw, or the evidence and rendered a verdict which ought not to stand, to substitute its own judgment for theirs, and after determining upon the evidence which amount ought to be allowed, allow the plaintiff to remit the excess, and then refuse a new trial." And then after conceding that there were two authorities (Collins v. Railway, 12 Barb. 492, and Clapp v. Railway, 19 Barb. 461), sustaining that view, and expressing some doubt as to whether there was any evidence that the value was the precise sum named by the court, he continued: "But without determining whether the court might properly have done this (determine the true value of the machine) consistently with the rule above laid down, we think it was mistaken in the rule of damages which it finally allowed." Thereupon the court reversed the cause upon other grounds, and hence the question suggested was not determined. In Blunt v. Little, 3 Mason, 102, the plaintiff obtained a verdict of $2,000 in an action for malicious arrest, and on motion for a new frial on the ground that the damages were excessive, Mr. Justice Story, before whom the cause was tried, said: "After full reflection I am of opinion that it is reasonable that the cause should be submitted to another jury,unless the plaintiff is willing to remit $500 of his damages. If he does, the court ought not to interfere farther." Page 107. A similar practice was followed in Diblin v. Murphy,3 Sandford, 19; Collins v. Railway, 12 Barb. 492; Clapp v. Railway, 19 Barb. 461; Murray v. Railway, 47 Barb. 196; McIntyre v. Railway, 47 Barb. 515; Sears v. Connover, 3 Keyes. 113; Hayden v. Co., 55 N. Y. 521; Whitehead v. Kennedy, 69 N. Y. 462; Doyle V. Dixon, 97 Mass. 208; Woodruff v. Richardson, 20 Conn. 238; Jewell v. Gage, 42 Me. 247; Bel: knap v. Railroad, 49 N. H. 358; Town of Union v. Durkes, 38 N. J. L. 23; Yeager v. Weaver, 61

Pa. St, 425; Pendleton Street Ry. Co, v. Rahmann, 22 Ohio St. 446; I. C. R. R. Co. v. Ebert, 74 Ill. 398; Lombard v. Railway, 47 Iowa, 494; Collins v. Council Bluffs, 35 Iowa, 432; Kinsey v. Wallace, 36 Cal. 462; Guerry v. Keitan. 2 Richardson, 507; Young v. Englehard. 1 How. (Miss.) 19; Davidson v. Molyneux, 17 L. T. R. 289. These cases were mostly actions for torts. In some of them the reduction was allowed by the appellate court, but that would seem to be extending instead of limiting the rule. The reasoning in some of these e ses would seem to be unanswerable. We shall make no attempt to add anything. The practice adopted by the trial judge is clearly sanctioned by the great weight of authority. We must, therefore, hold that in actions of tort, as well as contract, where the damages are clearly excessive, the trial judge may either grant a new trial absolutely, or give the plaintiff the option to remit the excess, and in case he does so.order the verdict to stand for the residue. Certainly the practice will tend to promote justice and lessen the expense to litigants and the public. Besides, the allowance of such option is no more of an exercise of arbitrary power by the trial judge, than it would be for him to set aside the verdict absolutely upon the sole ground that it is excessive, and then, in effect, direct a jury to bring in a verdict for a smaller sum, but not in excess of an amount named by the court. But we are unwilling to say that the verdict, as returned in this case, was so excessive as to authorize the interference of this court. To authorize such interference, it should appear from the evidence, to use the language of Mr. Sedgwick, that "the damages are so excessive as to create the belief that the jury have been misled either by passion, prejudice or ignorance. But this power is very sparingly used, and never except in a clear case." 2. Sedg. on Dam. (601), 652. See Bowe v. Rogers, 50 Wis. 602. Since this is so, it is evident that the reduction was a favor to the defendant of which he has no right to complain. Certainly a party against whom a judgment has been recovered, can not reverse it on the ground that it is less than it should have been. Bammessel v. Ins. Co., 42 Wis. 463. Even in case of error, the judgment will not be reversed unless the error is such as might have prejudiced the appellant. Jones v. Parish, 1 P. 494; Green v. Gilbert, 21 Wis. 395; Balliet v. Scott, 32 Wis. 174; Irish v. Dean, 39 Wis. 562.

For the reasons given the judgment of the circuit court is affirmed.

ACTIONS OF TORT-REMOTE DAMAGES.

HUGHES V. MCDONOUGH.

Supreme Court of New Jersey.

One is answerable in tort for the natural and reasonable consequences of his acts.

The plaintiff is a blacksmith and horse-shoer by trade, and has, as he alleges, the patronage of one Van Riper. On one occasion he shod a mare for Van Riper in a good and workmanlike manner, but the defendant maliciously intending to injure the plaintiff in his said trade,etc.,"did willfully and maliciously mutilate, impair and destroy the work done and performed by the said plaintiff upon the mare of the said Van Riper, without the knowledge of the said Van Riper, by loosening a shoe which was recently put on by the said plaintiff, so that if the mare was driven the shoe would come off easily, and thus make it appear that the said plaintiff was an unskillful and careless horseshoer and blacksmith, and that the said mare was not shod in a good and workmanlike manner, and thus deprive the said plaintiff of the patronage and custom of the said Van Riper." The secɔnd count charges the defendant with driving a nail in the foot of the horse of Van Riper after it had been shod by the plaintiff, with the same design as specified in the first count. The special damages laid was the loss of Van Riper as a customer. On writ of error taken by defendant.

BEASLEY, C. J., delivered the opinion of the

court:

The single exception taken to this record is, that the wrongful act alleged to have been done by the defendant, does not appear to have been so closely connected with the damages resulting to the plaintiff as to constitute an actionable tort. The contention was that the wrong was done to Van Riper; that it was his horse whose shoe was loosened and whose foot was pricked, and that the immediate injury and damage were to him, and that consequently the damages of the plaintiff were too remote to be made the basis of a legal claim. But this contention involves a misapplication of the legal principle, and can not be sustained. The illegal act of the defendaut had a close causal connection with the hurt done to the plaintiff, and such hurt was the natural and almost direct product of such cause. Such harmful result was sure to follow in the usual course of things, from the specified malfeasance. The defendant is conclusively chargeable with the knowledge of this injurious effect of his conduct, for such effect was almost certain to follow from such conduct, without the occurrence of any extraordinary event or the help of any extraneous cause. The act had a twofold injurious aspect; it was calculated to injure both Van Riper and the plaintiff; and as each was directly damnified, I can perceive no reason why each could not repair his losses by an action.

The facts here involved do not, with respect to their legal significance, resemble the juncture that gave rise to the doctrine established in the case of Vicars v. Wilcocks, 8 East, 1. In that instance the action was for a slander that required the existence of special damage as one of its necessary constituents, and it was decided that such constituent was not shown by proof of the fact that as a result of the defamation the plaintiff had been

discharged from his service by his employer before the end of the term for which he had contracted. The ground of this decision was, that this discharge of the plaintiff from his employment was illegal and was the act of a third party, for which the defendant was not responsible, and that as the wrong of the slander became detrimental only by reason of an independent wrongful act of another, the jury was to be imputed to the last wrong, and not to that which was farther distant one remove. In his elucidation of the law in this case, Lord Ellenborough says, alluding to the discharge of the plaintiff from his employment, that it was a mere wrongful act of the master for which the defendant was no more answerable than if, in consequence of the words, other persons had afterward assembled and seized the plaintiff and thrown him into a horse-pond by way of punishment for his supposed transgression." The class of cases to which this authority belongs rests upon the principle that a man is responsible only for the natural consequences of his own misdeeds, and that he is not answerable for detriments that ensue from the misdeeds of others. But this doctrine, it is to be remembered, does not exclude responsibility when the damage results to the party injured through the intervention of the legal and innocent acts of third parties, for in such instances damage is regarded as occasioned by the wrongful cause, and not at all by those which are not wrongful. Where the effect was reasonably to have been foreseen, and where, in the usual course of events, it was likely to follow from the cause, the person putting such cause in motion will be responsible, even though there may have been many concurring events or agencies between such cause and its consequences. This principle is stated and is illustrated by a reference to a multitude of decisions in Cooley on Torts, 70 et seq.

The case of McDonald v. Snelling, 14 Allen, 290, is pertinent to this point, and also to the circumstances that a wrongful act which is primarily detrimental to one person may, under some conditions, be actionable by a third person, to whom, more remotely, damage has been occasioned. The rule of decision is stated in these terins: "Where a right or duty is created wholly by contract, it can only be enforced between the contracting parties; but where the defendant has violated a duty imposed upon him by the common law, it seems just and reasonable that he should be held liable to every person injured whose injury is the natural and probable consequences of the misconduct. In our opinion this is the well established and ancient doctrine of the common law, and such a liability extends to consequential injuries by whomsoever sustained, so long as they are of a character likely to follow, and which might reasonably have been anticipated as the natural and probable result under ordinary circumstances of the wrong• · ful act." This same rule of law is sanctioned and enforced in Rigby v. Hewitt, 5 Exch. 242, Chief

Baron Pollock saying: "I am, however, disposed not quite to acquiesce to the full extent in the proposition that a person is responsible for all the possible consequences of his negligence. I wish to guard against laying down the proposition so universally; but of this I am quite clear, that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result under ordinary circumstances from such misconduct." Judge Parsons expresses the rule almost in these same terms. 2 Parsons on Cont., 456. In this same line there are many other illustrated cases, among which should be specially noted the following: Dixon v. Fawcus, 30 L. J. Q. B. 137; Tarleton v. M'Gawley, Peake, 270; Bell v. R. Co., 10 C. B. (N. S.) 307; Keeble v. Hickeringill, 11 East, 574,

1. Where it is expressed in terms upon a railway ticket that it is not good unless "used" on or before a certain day, a presentation of the ticket and its acceptance of it by the conductor before midnight of that day, although the journey is not completed until the next morning, such facts will be held to be a compliance with the condition.

2. Where the terms of a railway ticket bind the passenger to a continuous journey, such requirement is fulfilled if the passenger commences his journey at an intermediate point.

EARL, J., delivered the opinion of the court: This action was brought by the plaintiff to recover damages for being ejected from one of the defendant's cars while he was riding therein as a passenger. He was non-suited at the trial, and the judgment entered upon the non-suit was affirmed at the general term. The material facts of the case are as follows:

The plaintiff being in St. Louis on the 21st day of September, 1877, purchased of the Ohio & Mississippi Railway Company a ticket for a passage from St. Louis, over the several railroads mentioned in coupons annexed to the ticket, to the City of New York. It was specified on the ticket that it was "good" for one continuous passage to point named "in coupon attached;" that in selling the ticket for passage over other roads, the company making the sale acted only as agent for such other roads and assumed no responsibility beyond its own line; that the holder of the ticket agreed with the respective companies over whose roads he was to be carried to use the same on or

bofore the 26th day of September then instant. and that if he failed to comply with such agreement, either of the companies might refuse to accept the ticket or any coupon thereof and demand the full regular fare which he agreed to pay. He left St. Louis on the day he bought the ticket, and rode to Cincinnati and stopped there a day. He then rode to Cleveland and staid there a few hours, and then rode to Buffalo, reaching there on the 24th, and stopped there a day. Before reaching Buffalo he had used all the coupons except the one entitling him to a passage over the defendant's road from Buffalo to New York. The material part of the language upon that coupon is as follows: "Issued by the Ohio & Mississippi Railway on account of New York Central & Hudson River Railroad one first-class passage, Buffalo to New York."

Being desirous of stopping at Rochester the plaintiff purchased a ticket over the defendant's road from Ruffalo to Rochester, and upon that ticket rode to Rochester on the 25th, reaching there in the afternoon. He remained there about a day, and in the afternoon of the 26th of September he entered one of the cars upon the defendant's road to complete the passage to the City of New York. He presented his ticket with the one coupon attached to the conductor, and it was accepted by him and was recognized as a proper ticket, and punched several times until the plaintiff reached Hudson, about three or four o'clock A. M., September 27th, when the conductor in charge of the train declined to recognize the ticket, on the ground that the time had run out, and demanded three dollars fare to the City of New York, which the plaintiff declined to pay. The conductor with some force then ejected him from the car.

The trial judge non-suited the plaintiff on the ground that the ticket entitled him to a continuous passage from Buffalo to New York, and not from any intermediate point to New York. The general term affirmed the non-suit, upon the ground that although the plaintiff commenced his passage upon the 26th of September he could not continue it after that date on that ticket.

We are of the opinion that the plaintiff was improperly non-suited. The contract at St. Louis evidenced by the ticket and coupons there sold was not a cantract by any one company or by all the companies named in the coupons jointly for a continuous passage from St. Lonis to New York. A separate contract was made for a continuous passage over each of the roads mentioned in the several coupons. Each company, through the agent selling the ticket, made a contract for a passage over its road, and each company assumed responsibility for the passenger only over its road. No company was liable for any accident or default upon any road but its own. This was so by the very terms of the agreement printed upon the ticket. Hence, the defendant is not in a position to claim that the plaintiff was bound to a continnous passage from St. Louis to New York, and it

can not complain of the stoppages at Cincinnati and Cleveland. Hutchinson on Carriers, sec. 579; Brooks v. The Railway, 15 Mich. 332.

But the plaintiff was bound to a continuous passage over the defendant's road-that is, the plaintiff could not enter one train of the defendant's cars and then leave it, and subsequently take another train and complete his journey. He was not, however, bound to commence his passage at Buffalo. He could commence it at Rochester or Albany, or any other point between Buffalo and New York, and there made it continuous. The language of the contract, and the purpose which may be supposed to have influenced the making of it do not require a construction which make it imperative upon a passenger to enter a train at Buffalo. No possible harm or inconvenience could come to the defendant if the passenger should forego his right to ride from Buffalo and ride only from Rochester or Albany. The purpose was only to continuous passage after the passenger had once entered upon a train. On the 26th of September the plaintiff having the right to enter a train at Buffalo, it can not be perceived why he could not, with the same ticket, rightfully enter a train upon the same line at any point nearer to the place of destination.

When the plaintiff entered the train at Rochester on the afternoon of the 26th of September and presented his ticket and it was accepted and punched, it was then used within the meaning of the contract. It could then have been taken up. So far as the plaintiff was concerned it had then performed its office. It was thereafter left with him not for his convenience but under regulations of the defendant for its convenience that it might know that his passage had been paid for. The contract did not specify that the passage should be completed on or before the 26th, but that the ticket should be used on or before that day, and that it was so used seems to us too clear for dispute.

The language printed upon the ticket must be regarded as the language of the defendant, and it is of doubtful import the doubt should not be solved to the detriment of the passenger. If it had been intended by the defendant that the passage should be continuous from St. Louis to New York, or that it should actually commence at Buffalo and be continuous to the City of New York, or that the passage should be completed on or before the 26th of September, such intention should have been plainly expressed and not left in doubt as might and naturally would mislead the passenger.

We have carefully examined the authorities to which the learned counsel for the defendant has called our attention, and it is suflicient to say that none of them are in conflict with the views above expressed.

The judgment should be reversed aud a new trial granted, costs to abide the event.

All concur; ANDREWS, C. J., in result; TRACY, J., absent.

Supreme Court of Georgia, February Term, 1882.*

1. While a private stable in a city is not per se a nuisance, still it may be so kept and managed as to become one, and one who builds and maintains such a stable upon his own premises so near his dividing line that it is in danger of disturbing the adjacent property owners, does so at his own peril, and must guard against such result.

2. An injunction will not lie to restrain a course of action from which speculative or contingent injuries may result.

Refusal of injunction from Floyd Superior Court.

CRAWFORD, J., delivered the opinion of the

court:

A bill was filed to enjoin the defendant from building a private stable on his own lot, in the City of Rome, adjoining that of the complainauts. The grounds for the application of the junction were that large quantities of litter, manure and filth will be gathered in said stable; that swarms of flies and other vermin will be generated therein; that noxious vapors and foul stencies will be generated; that there will be an eternal stamping of horses and lowing of cattle in said stable, and if the defendant is permitted to locate and use said stable at the place upon which he proposes to build it, the injury to the property of complainants will be irreparable. The bill was dismissed at the hearing for want of equity.

The only question for this court to decide is, Was the dismissal of the bill error? It was ruled in 9 Ga. 425, “That a livery stable within sixtyfive feet of a hotel which would result in the loss of health and comfort of the proprietor's family, and the loss of patronage to his hotel in consequence of the unhealthy elluvia arising therefrom and the collection of swarms of flies, and the interminable stamping of horses therein would operate as a nuisance, and that the landlord was entitled to an injunction to restrain the erection.” This ruling was made upon the refusal of the chancellor below to grant an injunction restraining the erection of the building. Upon the coming in of the answer in the case, denying the main allegations in the bill, and setting up the fact of a removal of the plank floor, and that by the use of lime water, and keeping the stalls neat and clean, as well as other precautionary measures, there would be no damage to the complainant resulting from said stable, the chancellor dissolved the injunction.

This ruling by the chancellor brought the case again before this court. as may be seen in 10 Ga. 336, and it was there held, "That the ad interim

*This case was argued at the last term and decision reserved.