Morris v. Phelps. ANDREW MORRIS v. ANSON G. PHELPS AND OTHERS. Where a party has been injured by a collision upon a public highway, he cannot maintain an action if the facts show that he has in any manner, by his own carelessness or neglect, contributed to or caused the injury of which he complains. M. left his horse and cart standing upon a public pier or dock, within two feet of the edge, at a time when the pier was crowded, and there was room for only one horse and cart to pass upon it. The horse's bit was out, and he was feeding. The defendants' cart, passing, came in contact with M.'s cart, and threw it and the horse into the river, where the horse was drowned. Held, that M. could not recover therefor. He was not only obstructing a public highway, but was guilty of gross negligence in leaving his horse at the edge of a dock, after removing the bit, the only thing by which the animal could, in case of accident or emergency, be controlled. APPEAL by defendants from a judgment of the Marine Court at general term. This action was brought to recover damages for the death of the plaintiff's horse. The facts in the case are fully stated in the opinion of the court. By the Court, HILTON, J.-To entitle the plaintiff to recover in this action, it was necessary for him to establish the proposi tion, that the killing of his horse was caused by the wrongful acts of the defendants, or of their servant while in their employ. ment; and that he did not in any way, by fault or negligence on his part, cause or contribute to the injury of which he complains. Butterfield v. Forrester, 11 East, 61; Bush v. Brainard, 1 Cowen, 78; Harlow v. Humiston, 6 Cowen, 191; Brownell v. Flagler, 5 Hill, 282; Brown v. Maxwell, 6 Hill, 592; Spencer v. Utica and Schenectady RR., 5 Barb. 337; Brand v. Schenectady and Troy RR., 8 Barb. 368, 382. It appears, from the evidence on the trial, that on November Morris v. Phelps. 17th, 1857, the plaintiff's horse, attached to a coal cart, was standing on the upper side of the pier or dock at the foot of Beekman-street in this city, with the bit out of his mouth, feeding out of a bag placed on top of a cask. The cart was along side of the string piece of the pier, and the horse was within two feet of its edge. This was between one and two o'clock in the day, when the dock was crowded with vehicles, and there was not room for more than one horse and cart to pass on the dock alongside of where the plaintiff's horse was standing. A horse and cart of the defendants', in passing through this space loaded with sheet iron for the bonded warehouse, came in contact with the plaintiff's cart, threw his horse over the side of the pier, and, after hanging a short time upon a hawser, the animal fell into the water and was drowned. These are the undisputed facts, and upon them it is impossible to say that the plaintiff was free from negligence. He was not only obstructing a public highway at an hour of the day when it was so crowded as to permit but one vehicle at a time to pass through it, but he was guilty of gross negligence in standing his horse at the edge of a pier after removing the bit, the only thing by which the animal could, in case of accident or emergency, be in any way controlled. It is a rule of law too well settled to admit of any doubt, that where a party has been injured by a collision upon a public highway, he cannot maintain an action if the facts show, as in this case, that he has drawn the mischief on himself by his own carelessness and neglect. Hartfield v. Roper, 21 Wend. 615; Rathbun v. Payne, 19 Wend. 399; Burcle v. N. Y. Dry Dock Co., 2 Hall's Super. Ct. R. 151; Lane v. Crombie, 12 Pick. 177; Smith v. Smith, 2 Pick. 621. It was the duty of the judge on the trial in the court below, upon these facts, to have dismissed the complaint; and the judg ment in favor of the plaintiff should therefore be reversed. Judgment reversed. Etchberry v. Levielle. LUCIEN ETCHBERRY v. JOSEPH LEVIELLE. The intentional doing of a wrongful act with knowledge of its character, and without cause or excuse, is malicious. Malice is of two kinds: malice in law-which is inferred from an act unlawful in itself, and injurious to another; and express or actual malice-which relates to an actual state or condition of mind to be established as matter of fact by the circumstances of each case. It is not necessary, to constitute express malice, that the act should proceed from hatred or ill-will. It may be inferred from an apparent mischievous intention of the mind, or from inexcusable recklessness. E. and L, being engaged in a game of shooting at a target by blowing a sharp arrow of steel through a tube, L. blew through the tube at E., and, notwithstanding the repeated remonstrances of E. and others, continued to do so until at last the arrow struck E. in the eye, severely wounding him so as to confine him to his bed for nearly four months and a half, and to cause the total loss of the eye. Held, under the circumstances, sufficient to warrant an inference of actual malice, and to justify a verdict for vindictive damages. The judge at the trial charged the jury that if the injury was purely the result of an accident, the defendant was liable only for actual damages; but, if the defendant acted with the intention of annoying, harrassing, or teasing the plaintiff, then the rule would be different; and in the latter case, even if the injury was unintentional, the jury might give more than the actual damages-they might give "smart money." Held, correct. In actions for injuries to the person or character, it is not possible, in the nature of things, to ascertain or measure the extent of the injury by any absolute pecuniary standard. In such cases, the damages cannot be fixed and established in money by the evidence. The law cannot repair what has been done, or replace the party in so good a position as he was. All that it can do is to compel the party who did the injury to make a pecuniary satisfaction; and, in ascertaining what it shall be, all the circumstances under which the injury occurred, are to be considered. In an action to recover damages for an injury to the person of the plaintiff, by the unlawful and malicious act of the defendant, it is neither a defence nor matter in mitigation that the plaintiff was engaged in an unlawful game upon the Sabbath at the time of the injury. APPEAL by defendant from an order at special term denying a motion for a new trial. This was an action to recover damages for an injury to the person. The facts out of which the action. arose, are very fully stated in the opinion of the court. Etchberry v. Levielle. Waldo Hutchins, for the appellant. I. The judge erred in refusing to charge, as requested by defendant's counsel, "that as the plaintiff was, at the time he sustained the injury complained of, present in a public or tippling house, engaged in playing a game which was in violation of law, he cannot recover damages for the injury complained of." Also, in refusing to charge "that, under the circumstances of the case, the plaintiff was guilty of negligence; and, therefore, cannot recover damages for the injury." And furthermore, in refusing to charge "that the fact that the plaintiff was at the time engaged in an amusement in an unlawful manuer, might be taken into consideration in mitigation of damages." 2 R. S. (4th ed.) 83, 866; Bosworth v. Inhabitants of Swansey, 10 Met. 363; Stickle v. Richmond, 1 Hill, 77; Sedg. Meas. of Damages, 468, and cases cited. II. The judge erred in charging the jury that if the act of the defendant was malicious, then the jury might give smart money, There was certainly no evidence in the case of express malice, or from which malice could be inferred, and it was there fore error on the part of the judge to submit the question of ma lice to the jury. Krom v. Schoonmaker, 3 Barb. S. C. 647; Sedg. on Meas. of Damages, 454, 455; 3 Greenl. Ev. §§ 14, 15, 144 to 147. III. The judge erred in charging the jury, that if the act was done with the intention to annoy or tease the plaintiff, then also they might give smart money. IV. The damages found by the jury were, under the circumstances, excessive. John Graham and George Carpenter, for the respondent. I. It is absurd to say, because a man is acting unlawfully himself, or is in an unlawful position, that, civilly speaking, any wrong can be done to him, without any responsibility attaching to the person who does it. II. To ask the court to charge the jury that the plaintiff was guilty of negligence, was asking the court to take the whole case from the jury. Why did not the defendant move for a non-suit at once? III. So long as the plaintiff did not contribute to his injury, it is difficult to see what his actions or conduct had to do with the deferdant's mischiev Etchberry v. Levielle. ously putting his eye out. How could they possibly qualify the animus of the defendant? IV. A malicious injury is always punishable with exemplary damages. There are different ways of showing malice. Annoyance is one of the most marked. The charge on this point is nothing but the assertion of a familiar principle. By the Court, DALY, First Judge.-The defendant Levielle is the keeper of a liquor store in Thirty-third street. On a Sunday afternoon in November last, he invited the plaintiff Etchberry to come to his store and take a glass of wine. Etchberry accepted the invitation, and, while they were at the store, Levielle, and other parties who were there, commenced playing at a game. The game consisted in blowing a sharp piece of steel with feathers attached to it, through a tube, at a target. When Levielle blew the piece of steel at the target, Etchberry went up to count the game, whereupon Levielle blew through the tube at him, and the instrument or arrow struck him in the back collar of his coat. Levielle was then told, by a bystander, that he ought not to do it; that it was dangerous; that if Etchberry should turn his head it might hurt him. But, not heeding this warning, he blew the arrow at Etchberry again, and struck him in the back. Etchberry then went up to Levielle in a menacing manner, and raised his fist to strike him. Some hard words passed between them, Etchberry appearing to be in a passion. Levielle laughing, and in good nature, and not excited. A few minutes after, Etchbery being near the target, Levielle shot at him again; and, as Etchberry stepped back from the target and turned his head, Levielle pointed the tube at him, blew through it again, and the instru ment struck Etchberry in the eye. The bystanders gathered around, Etchberry drew the instrument from his eye, and, as he did so, the blood started out, and he seemed to be suffering a great deal. He went home, was laid up for four months and a half, keeping his bed nearly the whole of that time, suffered a great deal of pain, especially in the head, the inflammation lasting three months and a half, and totally lost the use of his eye. He |