¶1Though the damages do not appear to be ex-ceesive, nor the verdict unjust, yet as the jury acted under an erroneous instruction, the influence of which cannot now be determined, the judgment must be reversed and a new trial awarded. It was error to charge the jury “that they were at liberty to find exemplary damages; that this is one of those cases in which they can be allowed.” This instruction was too broad and unqualified. The conditions under which the jury were authorized to give exemplary damages were wholly undefined ; and the amount of such damages left to a vague sense of propriety on their part. Exemplary damages in cases of this nature can only proceed from gross and criminal negligence — such negligence as evinces on the part of the defendant a wanton disregard of the safety of others, and which in law is equivalent to malice. In such cases the jury may give exemplary damages) by way of punishment, proportioned to the degree of negligence or wantonness shown. The jury should *360have been instructed that, if they found these conditions, of which, the evidence seems very slight, then they were at liberty to give such exemplary damages as, under all the circumstances, would be just. As the instruction is, the question of gross negligence or wanton misconduct on the -part of the defendant was assumed by the court, and not left to the consideration of the jury at all.
¶2By the Court.■ — -The judgment is reversed, and a new trial awarded.