*Mr. J. Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray and Mr. Justice Wells concurred. The Court erred in laying down the measure of damages. In cases of negligence simply, the rule is to allow the actual damages. The Court should also have recorded the verdict as it was rendered by the jury, and as the record discloses how it was rendered, we must treat that as the verdict which the jury actually brought in. How then does the case stand ? The jury find $2,500 actual damages, and $2,500 smart money.
The award of smart money, under the charge of the Court, suffices to convict the defendant of negligence, and entitles the plaintiff to recover the actual damage; and the latter having been separately ascertained by the verdict, the case is free from every difficulty, and judgment should have been rendered for the plaintiffs for that amount only. The judgment is reversed, and judgment here rendered for the plaintiffs for the sum of twenty-five hundred dollars and the costs of the Court below. Motion for a rehearing was denied.