(аfter stating the facts.) 1. Appellee based her cause of action at the trial upon the. alleged negligence of appellant, after appellee’s ejectiоn from the train, “in leaving her wholly among strangers, without making any proper provision for her protection, comfort and personal safety.” The court told the jury that “the only element of damage or injury the jury are authorized to consider is actual personal physical injury received by plaintiff (appellee) after being left at Arkadelphia. The fact that plaintiff was tired or worried will not alone authorize a verdict for the plaintiff.” The issue of punitive damages was not submitted to the jury. The appellee, so far as this record discloses, did not ask on the trial for exemplary damages. Therefore the only questions we have to consider on this appeal are whether or not the issue of appellant’s negligence, as abоve indicated, was properly submitted to the jury, and whether or not the verdict was sustained by the evidence. When a passenger, unattended, becomes insane upon the train, it is the duty of the rаilway company to remove such passenger, where the comfort and safety of other passengers on the train require it. But in performing this duty to 'the other passengers it must not neglect the duty it owes to the unfortunate insane and helpless one who is also a passenger.
This court in Price v. St. Louis, I. M. & S. Ry. Co.,
2. The court gave the following instruction on the burden of proof:
“Thе burden of proof is upon t'he plaintiff in this case to show by a greater weight or preponderance of the evidence that she -was put off the train in the manner as alleged in the сomplaint, and left in condition as therein alleged, and she will not be entitled to recover anything until she has shown these facts 'by a preponderance, or a material part, of the evidence as they are alleged in the complaint.”
This instruction was erroneous. The words “or a material part” are not synonymous with the word “preponderance.” A “material рart of the evidence” might or might not be a preponderance thereof. The instruction was complete without adding the words' “or a material part,” and the coux-t erred in inserting thesе. But, inasmuch as there was no conflict in the evidence as to the salient facts upon which the liability of the appellant was predicated, the instruction could not have been рrejudicial.
3. The appellant among other requests presented the following :
“If you believe from the evidence that plaintiff was put off the train at Arkadelphia and placed in the white waiting room of the depot and remained in said depot until the sheriff came and took charge of her, then the defendant is not liable for anything that occurred after the sheriff got to her.”
Appellant contends that this request should have been granted, under the authority of section 4049, Kirby’s Digest, which provides that: “Insane persons found at large, and not in the care of some disсreet person, shall be arrested by any peace officer, and taken before a magistrate of the county, city or town in which the arrest is made.” The statute has no application to cases like this. Appellee, in law, was not an insane person at large. She was the passenger of appellant still, although ejected from its train. She was, at the time thе sheriff took charge of her, in appellant’s waiting room and in the care of appellant’s night operator, to whom she had been intrusted when she was ejected from appеllant’s train. True, the evidence discloses that this operator went out at the window when appellee went in to the waiting room. Still, under the law, he was in charge of her as appellant’s agent. His discretion, it appears, caused him to abandon in haste the poor unfortunate left in his care. But -the law required that his discretion should be exer-' cised in the direction of her сomfort and safety, and not in leaving her to her fate. His duty was to exercise such care as any reasonably prudent person should, under the circumstances, to protect her against harm and to provide for her comfort. If he was so alarmed that he could not do this himself, it was 'his duty to call to his assistance others who could. He wholly failed to discharge this duty, and for any injury that rеsulted to appellee from this cause appellant was liable. The sheriff was' not requested by appellant’s agent to take .charge of appellee, and he did not do so in his official capacity. The custody 'he took of appellee, as he says' himself, was not in his official, but individual, capacity. His kindly offices were interposed in the interest of humаnity and by way of ‘assistance rather to appellant, for he kept appellee at the depot, and when he went away left her in charge of appellant’s station agеnt. Doubtless, the kind attention of the sheriff and others who voluntarily cared for appellee after she was ejected from appellant’s train prevented her from receiving greаter injuries than she is shown to have sustained. As appellant under, the instructions could only be liable for the actual physical injuries appellee received, this generous assistancе of volunteers in preventing further injury inured to the benefit of appellant, but did not relieve it of liability for the actual damage done.
4. The argument of counsel was prejudicial. He was not dеclaring that it was the duty of appellant under the law to provide a physician, but simply stating his opinion as to what, under the evidence adduced, the appellant in the exercise оf ordinary care should or could have done. The facts were all before the jury, and it was for them to say what ordinary prudence required. Moreover, the appellant did not ask thе court to make the specific ruling that it was not the duty of appellant under the circumstances to have called a physician. We find no error in the ruling as' it is ¡here presented.
5. The court, both at the request of appellee and of appellant, confined the jury in its assessment of damages to compensation for the physical pain that appellеe may have suffered through appellant’s negligence. The allegations of the complaint were sufficient, and there was evidence, to warrant the submission of the question of exеmplary damages to the jury. But we can not say as matter of law that appellee was entitled to such damages. Under the evidence it was a jury question; and, since the jury were not allowed to assess any exemplary damages, we are of the opinion that a judgment for $1000 is plainly excessive. The only injuries she received 'and of which she complained, as discovеred by the testimony of her son, were “bruises on her body,” “she had a great place,” an abrasion, “on 'her wrist,” that was her “greatest complaint.” She also complained of her back аnd hips. >She was confined to her bed a couple of days. No permanent injury was shown. Nor is it shown exactly when and where she received the injuries described by her son. In the absence of аny consideration for damages by way of punishment, our opinion is that the sum of $100 would be ample compensation for the mere physical injuries which appellee received.
If she will in fifteen days remit, so as to make the judgment $100, it will he affirmed; otherwise reversed and remanded for new trial.