Page:Federal Reporter, 1st Series, Volume 7.djvu/67

 BROWN V. MEMPHIS & 0. B. CO. 55 �•befin mistaken in his duty and violated the rights of the plaintifif, yet she would not be entitled to recover punitive, -exemplary, or vindictive damages, but such as are purely compensatory.* But the court refused to give the instruction as requested, and charged ' that such facts should be taken in mitigation of such punitive, exemplary, or vindictive dam- ages as you may think proper to give.' �(3) "The court erred in refusing the sixth instruction of defendant, as follows : * If the jury find, from the testimony, that the conductor was discharging his lawful duty in requir- ing plaintiff to leave the ladies' car, and, in attempting to x)vercome her resistance, injured her, then the burden of proof that he used unnecessary force and violence is on the plaintiff to satisfy the jury, by a clear preponderance pf iestimony, that the conductor did use such unnecessary force and violence; and if the counter- testimony of defendant, as ^etailed by Hall and Stone, preponderates over that of plain- iiS. and her witnesses, in the opinion of the jury, then they must find for the defendant.' �(4) "Again, we insist that the new testimony disoovered after the trial (the witness White) is sufficient to grant a new irial, as the court can easily see that another credible wit- ness, supporting Governor Stone and Hall, as to the alleged «hoking of the plaintiff, would, in all probability, have lim- ited the recovery to compensatory damage againgt the de- fendant. The testimony was disoovered only accidentally after the trial, and by no human agenoy, or reasonable or extraordinary diligence, could it have been disoovered earlier." �The affidavits of newly-discovered testimony show that one White was in the car at the time, and he details the oc- currences in a way tending to corroborate the defendant's witnesses. It is said the f act that this witness was present was not discovered until after the trial of the case. The faots not already shown by the previous reports of this case ap^ pear in the opinion of the court. It should be stated that the plea which justified the exclusion, on account of color, was withdrawn because this company makes no distinction on that aceount, and the rea-sonablenessiof any regulai ton ��� �