TRESPASS on the case by the appellee against the appellant, the owner of a bridge across the Illinois river at Peoria, for injuries received by him while crossing the bridge with his team of horses. The appellant was the owner of lands adjacent to the bridge, and it was alleged that by its consent a railroad had been laid thereon so close that when trains passed, horses erossing the bridge were liable to become frightened. It was also alleged that it was the duty of the appellant to keep this land clear of all obstructions, and especially railroads, and the trains running thereon, so that people might safely cross the bridge with their horses; and that the bridge was not properly guarded, so as to prevent horses, when frightened, from backing off the bridge through the railing. From the evidence, it appeared that the plaintiff was passing over the bridge with a team of ordinarily gentle horses, and that he was a careful and experienced driver. When near the end of the bridge adjacent to the railroad the horses became frightened at escaping steam from one of the locomotives, and becoming unmanageable, backed off the bridge, breaking through the railing, and fell with the plaintiff to the ground below, injuring the horses, wagon, and harness, and breaking the plaintiff's jaw, and bruising him so severely that for some days his life was despaired of. He did not fully recover, and would never be in as good a condition after as before the injury. At the time the horses began to back he was sitting on the seat of his wagon, wrapped in buffalo-skins, and made no attempt to get off the wagon, but, as some of the witnesses for the defendant said, was sawing the horses' mouths with the bits, and whipping them. He could plainly have seen the locomotive before the horses commenced to back. There was a railing on the bridge, constructed of posts cut into the string-pieces, five inches square, braced on the outside at every other post, with a railing two by six inches in the center, and three by five inches on the top, and three and one half feet high, and was strong enough for all ordinary use. The top railing at the place where the horses backed off was not sound, but, being weather-beaten, did not show it until after it was broken. A resolution passed by the directors of the appellant arter the location of the railroad upon its land, ordering the president and secretary to execute a release of the right of way over the land to the railroad company, was introduced in evidence by the plaintiff for the purpose of showing that the appellant consented to the use of its land for the purposes of the railroad. The tenth instruction, given by the court at the

request of the plaintiff, informed the jury that they might take into consideration, in estimating the damages, the injury occasioned to the plaintiff's person and intellect, and his sufferings, pain, danger to his life, and loss of time, in consequence of the accident. The jury returned a verdict for the plaintiff for five thousand seven hundred and fifty dollars. The questions discusssed on the argument appear in the opinion.

N. H. Purple, for the appellant.

Mead and Williamson, for the appellee.

By Court, BREESE, J. 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. it is requisite such a case must be made.

But

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 locomo tive. 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 negli gence 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 in connection with the damages assessed, five thousand seven hundred and fifty dollars, manifests feeling and prejudice.

Our statute, Laws 1853, p. 97, which is a copy of 9 & 10 Vict., c. 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 cure, 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 exer tion, and consequent pecuniary loss. The judgment is reversed and the cause remanded.

Judgment reversed.

CATON, C. J., did not hear the argument, and gave no opinion.

EMPLARY DAMAGES, WHEN AWARDED: See Hosley v. Brooks, ante, p. 252, and note collecting cases. The principal case is referred to in City of Chicago v. Martin, 40 Ill. 246, as containing a statement that exemplary damages might be given in cases of willful negligence or malice, and as being the furthest that the court had gone in the direction of giving punitive damages.

CONTRIBUTORY NEGLIGENCE AS DEFEATING PLAINTIFF'S RECOVERY: See Zemp v. Wilmington etc. R. R., 64 Am. Dec. 763; Little Schuylkill etc. Co. v. Norton, Id. 672; Lucas v. New Bedford etc. R. R., 66 Id. 406: Vicksburg etc. R. R. v. Patton, Id. 552, and notes referring to other cases. The principal case is cited in Chicago etc. R. R. v. McKean, 40 Ill. 233, to the point that if the plaintiff, by his own negligence and want of care, contributed essentially and materially to the injury, he cannot recover.

VERDICT, WHEN SET ASIDE BECAUSE OF EXCESSIVE DAMAGES: See Raymond v. City of Lowell, 53 Am. Dec. 57; Milburn v. Beach, 55 Id. 91; McDaniel v. Baca, 56 Id. 339; Nicholson v. New York etc. R. R., Id. 390, and the notes thereto. The principal case is cited in Chicago etc. R. R. v. McKean, 49 Ill. 235, to the point that where willful negligence is not shown, and no foundation for heavy damages awarded, and the finding of the jury manifests feeling and prejudice, the verdict will be set aside.

RULE OF DAMAGES FOR PERSONAL INJURY INFLICTED BY NEGLIGENCE IS loss of time during the cure, and the expense incurred in respect of it, the pain and suffering undergone by the plaintiff, and any permanent injury, especially when it causes a disability from future exertion and consequent pecuniary loss. The principal case is an authority for this proposition in Chicago etc. R. R. v. McKean, 40 III. 239; City of Chicago v. Martin, 49 Id. 246. The jury may take into contideration the pain and anguish of mind consequent upon the injury; Indiana etc. R. R. v. Stables, 62 Id. 320; and a recovery may be had for permanent injuries, impairing future usefulness and consequent pecuniary loss: Holton v. Daly, 106 Id. 141.

REES v. EAMES.

[20 ILLINOIS, 282.]

PROMISE WILL BE IMPLIED BY DEFENDANTS IN EXECUTION TO REFUND SHERIFF AMOUNT OF JUDGMENT PAID BY HIM, where the execution was accidentally lost while in his hands before the return day, so that he was compelled to pay the amount of the judgment, and where, before the return day, the sheriff called upon the defendants for payment, which they promised, but afterwards refused.

ASSUMPSIT. The declaration, to which a demurrer was sustained by the court, sufficiently appears in the opinion. The action is brought by the personal representatives of the sheriff.

Arnold, and Larned and Lay, for the plaintiffs in error.

W. T. Burgess, for the defendants in error.

By Court, CATON, C. J. The declaration in this case shows that by accident the execution was lost while in the sheriff's hands, and before the return day; that before the return day he called on the defendants in execution and demanded payment, which they promised, but refused to make; that in conseqnence of the loss of the execution he was unable to return it according to the exigency of the writ, and hence became liable to pay, and did pay, the amount of the judgment; that after the return day of the execution and before he paid the amount he again de manded payment of the defendants, who again promised to pay it, but never did. On this state of facts, the law will imply ■ promise on the part of the defendants to refund to the sheriff

The

the amount which he has thus paid to satisfy this debt. sheriff was not bound to wait till he was sued for not returning the execution. It is sufficient that he was liable for the amount, and then he had a right to pay it and save costs. It is like a surety who voluntarily pays the debt after his liability is fixed. There the law will imply a request on the part of the principal.

The cases where the sheriff has and where he has not a remedy against the party whose debt he pays in consequence of omission of some official duty are very distinguishable, and there can be rarely any difficulty in applying the rule. Wherever he acts male fide, he is without remedy. If he acts in good faith— if he intends to do his duty, and supposes he is doing it-and through inadvertence or accident he becomes liable, he has his remedy over. If a sheriff suffer a voluntary escape, he has no remedy against the debtor, for he knew he was neglecting his duty when he suffered the debtor to go at large; but in case of an involuntary escape, although he might have guarded the prisoner closer, and was even guilty of negligence or want of proper prudence in not doing so, he has his remedy against the execution debtor if he thought he was safe.

Here the declaration shows that the sheriff was guilty of no willful misconduct, but that the execution was lost by accident, whereby he was unable to return it. The defense here insisted upon is an ungracious one, and ought not to be listened to except where the policy of the law requires that the sheriff should be punished for his misconduct. Then it is admitted, not for any intrinsic merit in the defense itself, or the party making it, but as an example and as a punishment for the misconduct of the officer. The demurrer to the declaration should have been overruled.

The judgment must be reversed and the cause remanded.
Judgment reversed.

STONE v. GARDNER.

[20 ILLINOIS, 804.]

JUSTICE REQUIRES THAT PARTY SHALL SUFFER FOR HIS OWN LACHES, when without excuse.

COURT OF EQUITY HAS NO POWER TO DISPENSE WITH PLAIN REQUIREMENTS OF STATUTE.

MONEY TO REdeem Land froM EXECUTION SALE MAY BE PAID to the administrator of the deceased sheriff, to his deputy, or to the purchaser. CLERK OF COURT IS NOT PROPER PERSON TO DEPOSIT MONEY WITH FOR REDEMPTION OF LAND sold under execution.