they are actuated by pure motives. It therefore makes every allowance for different dispositions, capacities, views and even frailties in the examination of heterogeneous matters of fact where no criterion can be supplied; and it is not until the result of the deliberations of the jury appears in a form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion that courts have found themselves compelled to interpose." (See, also, Bonneau v. North Shore R. R. Co., 152 Cal. 406, [125 Am. St. Rep. 68, 93 Pac. 106]; Lee v. Southern Pacific R. R. Co., 101 Cal. 118, [35 Pac. 572]; Wilson v. Fitch, 41 Cal. 368; Wheaton v. N. B. & R. Co., 36 Cal. 590; Aldrich v. Palmer, 24 Cal. 513.)

The records in the cases referred to and relied upon by the appellant were no doubt such as to justify the appeal courts in reducing the amount of damages returned by the juries upon the facts established therein, but we perceive nothing in said cases which requires or would justify the cutting down of the damages here, awarded upon evidence disclosing a much different state of facts from that upon which the higher courts felt constrained in those cases to hold the damages to be so excessive as "to shock the understanding and impress no dubious conviction" that they were the result of passion or prejudice. As was said by the late learned Justice McFarland, in the case of Morgan v. Southern Pacific Co., 91 Cal. 501, 508, 509, [29 Am. St. Rep. 143, 30 Pac. 601, 602]: "Cases are cited where verdicts for less than the amount awarded in the case at bar have been set aside; but there are many cases where verdicts for larger amounts have been allowed to stand. Two cases exactly alike are not to be found." See the following cases where the appeal courts refused to interfere with the damages awarded for the 'loss of limbs, either one or both: Galveston Ry. Co. v. Abbey, 29 Tex. Civ. App. 211, [68 S. W. 293]; Kalfur v. Broadway Ferry, 34 App. Div. 267, [54 N. Y. Supp. 503]; Williamson v. Brooklyn Heights Ry. Co., 53 App. Div. 399, [65 N. Y. Supp. 1054]; Robinson v. Central Pacific R. R., 48 Cal. 410 ($10,000 for loss of an arm); Union Pacific Ry. Co. v. Connolly, 77 Neb. 254, [109 N. W. 378]. In Stewart v. Long Island Ry. Co., 54 App. Div. 623, [66 N. Y. Supp. 436], where the plaintiff obtained a verdict for $18,000 for an

injury to his arm by which the member was permanently disabled, the court, refusing to disturb the verdict, says: "Further, I give much weight to the fact that the learned and acute trial justice refused to disturb the verdict." (See, to same effect, Harrison v. Sutter St. Ry. Co., 116 Cal. 156, [47 Pac. 1019]; Doolin v. Omnibus Cable Co., 125 Cal. 141, [57 Pac. 774]; Reeve v. Colusa Gas Co., 152 Cal. 99, [92 Pac. 89]; Smith v. Whittier, 95 Cal. 279, [30 Pac. 529].)

In Reeve v. Colusa Gas & Elec. Co., 152 Cal. 110, [92 Pac. 94], Mr. Justice Shaw, who wrote the opinion, very aptly says: "It is impossible adequately to describe the suffering and misery-past, present and future-inflicted upon the plaintiff as a consequence of the injury. The verdict is large, the amount of damage was a question for the jury, subject to the supervision and correction of the trial court, and having been passed by the latter without disapproval, it is not for us to say, under the circumstances, that it is excessive." (See Perkins v. Sunset Tel. & Tel. Co., 155 Cal. 712, [103 Pac. 190.])

We think that common experience justifies the observation that either the loss of, or an injury to, an arm in such manner as to permanently disable it, thus rendering it practically useless, to one compelled to earn a livelihood by manual labor, is worse and of infinitely greater disadvantage to the person so injured than would be the loss of a leg. In this case, if the testimony of the witnesses for the plaintiff be true, and it must, in view of the verdict, be so accepted by this court, the consequence of the injury inflicted upon the plaintiff by the defendant's negligence is, as we have before said, to permanently incapacitate him, to a great extent, for the performance of manual labor or for the exercise of any other employment in which the full normal power of both arms and hands is required. And, as the New York court says, in Vredenburgh v. New York Cen. & H. R. R. Co., 58 Hun, 607, [12 N. Y. Supp. 18], where the plaintiff was given damages in the sum of $6,500 for an injury to her right arm, so it is true here: "If the jury believed the testimony introduced by the plaintiff respecting the extent and permanency of her injuries, we can very well see how the verdict was made as it was," the judgment therein being affirmed.

2. The instructions given by the court which it is claimed misstate the rules by which the jury were authorized to be

guided in considering the evidence and assessing the damages read as follows:

"If you believe from the evidence that plaintiff sustained the injuries complained of in his complaint, as amended, through the carelessness and negligence of the defendant, without negligence on his part, then you should find for the plaintiff, Donald Scally, and assess his damages in such sum as you believe, under all the circumstances of this case in evidence, the plaintiff ought to recover, not exceeding the amount claimed in his complaint, as amended, to wit, $15,000." "If you believe from the evidence that the plaintiff, Donald Scally, is entitled to a verdict against said defendant, you must assess the amount of damages at a sum not to exceed the amount prayed for in his complaint, as amended, and in so doing, you have a right to consider the character of the injuries, if any, sustained by plaintif, the pain and suffering, if any, endured and which will be endured, if any, as the result of said injuries, if any, sustained by him, the effect of such injuries, if any, upon said plaintiff, the permanent character of said injuries, if any, if such injuries are permanent and what, before the injuries complained of, was the health and physical condition of the plaintiff. From all those elements, you will resolve what amount will fairly compensate the plaintiff for the injuries sustained by him, if any, provided you find in favor of the plaintiff."

Counsel for the appellant call our attention to several Cali fornia cases in which it is held that instructions, phrased in language in some respects similar to that of the instructions complained of here, were erroneous. In illustration of the pertinency of this contention, and for the purpose of showing the similarity of the two instructions, counsel, in their brief, parallel certain language of an instruction given in the case of Trabing v. Cal. Nav. Co., 121 Cal. 143, [53 Pac. 646], which they intimate was condemned by the supreme court as not containing a correct statement of the law, with the italicized portion of the first quoted of the foregoing instructions given in the present case. In the case cited, the instruction, among other declarations, contained the following: "... then I charge you, your verdict will be in favor of plaintiff for such damages as under all the circumstances of the case disclosed by the evidence appearing to be just, not exceed

ing," etc. But the court in that case does not, in its criticism of said instruction, go to the extent which the intimation of counsel would indicate. In fact, the court approved the instruction as involving a correct declaration of the law in abstract form. What the court did hold, however, was, that in that particular case, where there was an entire absence of any ground upon which the infliction of punitive or exemplary damages, claimed by the plaintiff, could be justified, there having been no evidence introduced showing that the corporation defendant itself committed the tort, and none showing that it ratified the act of its agent resulting in the tort, the instruction was too general and, therefore, misleading. The court said: "The instruction would apply to almost any conceivable case whether the action was against the principal or the agent who actually committed the tort, and whether the facts did or did not justify exemplary damages."

If the trial court in that case had clearly instructed the jury that, under the facts as established by the evidence, they should not consider the question of exemplary damages, as such question was not involved there, the instruction which appellant declares that the court condemned would have been proper in that case, for then, from the whole charge, it would clearly appear that the jury were properly restricted by the court in the matter of the assessment of damages to the consideration of the single question, what amount, "under all the circumstances of the case disclosed by the evidence," appeared to constitute just compensation for the damages sustained.

In the case at bar, no such negligence was imputed to the defendant as would warrant the infliction of a punishment by way of damages in excess of the amount which would, in the judgment of the jury, constitute just compensatory damages. Nor was any claim made by the plaintiff that punitive or exemplary damages should be imposed. Besides, the court in plain and perspicuous language instructed the jury that if the negligence of the defendant was the proximate cause of the injuries, if any, sustained by plaintiff, their verdict must be in favor of plaintiff "for such damages as you shall find from the evidence he has sustained, not exceeding the amount claimed in plaintiff's complaint." Thus it clearly appears that the court distinctly told the jury that they were, in case

they found the plaintiff's injuries were proximately due to defendant's negligence, to return only such amount as would in the estimation of the jury adequately compensate plaintiff for whatever damages he had thus sustained, and if the language of the instruction is susceptible of being understood at all it must necessarily be understood as expressly limiting the jury to the consideration of the proposition of what, if any, actual damages the plaintiff had suffered by reason of the accident, or, in other words, as excluding from consideration by the jury any question of "damages" in the nature of punishment. The fact is, in strictness, it would seem, in cases of personal tort, that characterizing as "damages" the sum which may be allowed in certain cases in excess of that which may be awarded as compensation for the damages actually sustained is rather misleading, if not involving altogether a misnomer, for such "damages," so called, amount only to a punishment or a fine which the law says ought to be imposed in cases where the negligence is the result of wanton carelessness, such fine, somewhat in analogy to the action of qui tam, to go to the party who has been injured and brought the suit. As applied to the defendant, the phrase "exemplary damages" is appropriate enough; but, as to the injured party it could not be said that he could sustain "exemplary damages. It would, obviously, be absurd to so say. He could, manifestly, sustain such damages only as amounted to an actual loss to him; and, when the court explained that the plaintiff was entitled to such damages as the jury might find from the evidence that he had sustained, it must have thus been made clear to the jury that what the court meant, when it subsequently told them that they should "assess the damages in such sum as they believe from the circumstances of this case in evidence the plaintiff ought to recover," was that they were at liberty to allow actual damages only. As so understood, the instruction correctly states the law and conforms to the rule as declared in section 3333 of the Civil Code, which reads: "For the breach of an obligation not arising upon contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate for all detriment proximately caused thereby, whether it could have been anticipated or not."