Railway Co. v. Daughtry
88 Tenn. 721
Tenn.
1890
Check Treatment
TurNEY, Ch. J.

The first nine assignments of error are based on the failure of the Court to give in charge requests made before the Court had chai’ged the jury. Under our rule there was no error in the refusal.

It was not error to allow the jury to assess exemplary damages. This question was directly raised and decided in Haley v. Mobile and Ohio *723Railroad Company, 7 Bax., 242. In that case the Circuit Judge instructed the jury that “if plaintiff’s intestate was killed by defendants, and died instantly, no vindictive or exemplary damages could be recovered.” Chief Justice Deaderick, .after a full review of the cases of this and other States, concludes: “We are of opinion that the charge of the Court complained of was erroneous as given, and if the elements of fraud, malice, gross negligence, or oppression existed in the case, whether death was instantaneous or not, exemplary damages might he recovered.” This ruling has been followed for sixteen years, and we see no reason to disturb it. It is sound and just.

We have passed upon the question of removal to the Federal Court in a case just disposed of with very similar facts —Chesapeake, Ohio and Southwestern Railroad v. Hendricks, Administrator. The other matters assigned do not constitute reversible error.

Affirmed.