Smith v. Atchison, Topeka, & Santa Fe Ry. Co.

SEPARATE CONCURRING OPINION.

ELLISON, P. J.

If it be granted that the trial court, in passing on the motion for new trial had authority to look to the entire evidence in the case, that for defendant as well as that for plaintiff, in order to determine whether punitive damages were excessive, that does not touch the real question involved. The real question is whether the court or the jury measure punitive damages. Of course, if there is no substantial evidence to justify such damages, the court can so declare as a matter of law. And if there is evidence to sustain punitive damages, yet they are…