The opinion of the court was delivered by

On the sixth day of November, 1864, the plaintiff, while a passenger in the cars of the defendants, *260received a personal injury, for which he brings this suit. The cars were thrown from the track at Callicoon, in the state of New York, by the misplacement of the switch there.- The plaintiff’s injuries were serious and permanent. The cause Aras tried at the Passaic Circuit, and a \rerdict rendered for the plaintiff for eight thousand five hundred dollars. A rule to show cause Avas granted, on motion of the defendants. They complain that the damages aAvardéd are excessive. On this ground alone the court is asked to set aside the verdict. No error in the rulings of the judge before Avhom the cause was tried, is alleged.

It appeared on the trial, that the defendants had adopted all needful rules and regulations for the running of their trains, and had employed competent persons as tenders of the switch at which the accident occurred. No care or caution required for the safety of the passengers had been omitted by the company. Through the carelessness and disobedience of their agents the accident happened. After a careful review of the testimony, I have come to the conclusion that the verdict cannot be supported, except upon the ground that the plaintiff is entitled to vindictive damages.

The ruling of the judge, at the trial, was that the case was not one that authorized a verdict for more damages than were actually sustained. I am satisfied that this ruling Avas correct, inasmuch as there was no attempt to prove any neglect of the company, as contradistinguished from its subordinate agents. In fact, the only fault or negligence complained of was that of the employes of the company. Where a railroad company adopts all rules and regulations needful for the safety of the passengers, and employs competent agents, whose duty it is to see that these rules and regulations are observed, I do not think that the company, in case of injury to the passengers, happening by reason of the failure of the agent to perform this duty, can be held liable for punitive damages. If, however, the company, as such,, is in fault, a different rule applies. The company, for its own carelessness, may be justly held liable for smart *261money. This rale does not prevail where the carelessness is only that of a subordinate agent. There is no justice in punishing the company after it has done all in its power to prevent injury. The agent, if guilty of negligence, may in certain cases be proceeded against by indictment. I cannot yield to the argument, so earnestly urged by the counsel of the plaintiff, that by construction of law, the company is guilty of gross negligence whenever its agent is, and is, therefore, to be treated the same as if through its own gross negligence the injury happened. I think the verdict was against the charge of the court, in that it is, to some extent at least, for punitive damages. Full compensation to the plaintiff, for all real loss, present and prospective, was the proper measure of damages. That having been exceeded, the verdict should be set aside and a new trial awarded. If, however, the plaintiff will remit the excess of the verdict above the sum of six thousand five hundred dollars, let judgment be entered thereon for that amount, at any time during the present term.

Note. — The plaintiff remitted the excess.