The court also charged the jury that it was the duty of defendant to have known the condition of its road and cars, and if they found that the roadbed, track, and engines of defendant were, at the time alleged, in such condition as not to render it reasonably certain, in the ordinary running of its trains, that the engine would be able to carry the trains through, etc., it would be willful negligence, for which they might allow punitive damages.

It appeared from the testimony that the road was originally constructed for the purpose of hauling lumber, but ultimately engaged in the business of transporting passengers across the intervening swamp from its northern terminus at Jamesville to its southern terminus at Washington. The roadbed had been made by driving down piles of vari ous kinds to make a foundation for the cross-ties. In the earlier years of its operations as a carrier of passengers the company had owned two engines, one regular narrow-gauge passenger-car, and one passenger car constructed out of a streetcar, but the latter car had become unserviceable sometime 609 before the injury complained of, and on extraordinary occasions a flat or box car had to be used to accommodate passengers. The engines had become worn, and had been jolted and injured on account of the bad condition of the roadbed, and the consequent jarring in passing over it. The earnings of the road had been applied exclusively to its improvement during the whole period of its use, as a road for transporting passengers, but latterly the income had been greatly diminished, and was insufficient to keep the roadbed in repair, much less to provide additional cars or engines. These are some of the facts testified to by the witnesses.

The gravamen of the complaint is that the defendant company carried the plaintiff from Washington to Jamesville November 7, 1892, but failed to furnish means of transportation, at the stipulated time, November 9th, to bring him back to Washington on his return ticket.

In applying the abstract principles, which we have stated more specifically, to the case before us, we find it to be a wellsettled rule that where a passenger is delayed or carried contrary to the agreement, so as to lead to a failure to accomplish the object of the trip, such person is entitled to recover in all cases at least the sum paid for the ticket, with interest thereon, together with compensation for the whole of the time lost in the trip, and in some instances the reasonable cost of reach

ing the objective point by means of some other conveyance: Yonge v. Pacific Mail S. S. Co., 1 Cal. 353; Hamlin v. Great Northern Ry. Co., 1 Hurl. & N. 408; Savannah etc. R. R. Co. v. Bonaud, 58 Ga. 180; Hawcroft v. Railroad, 8 Eng. L. & Eq. 362; Sears v. Eastern R. R. Co., 14 Allen, 433; 92 Am. Dec. 780; Eddy v. Harris, 78 Tex. 661; 22 Am. St. Rep. 88; Walsh v. Chicago etc. Ry. Co., 42 Wis. 23; 24 Am. Rep. 376.

The rule of damage just stated is to be adopted not only when the suit against the railway company is brought for, or the proof confined to, the breach of contract of carriage, but, as well, where the plaintiff elects to sue in tort and rely upon the disregard of duty on the part of the carrier as a 610 cause of action, unless it appear that the plaintiff has suffered, in addition to the expense, loss of time and inconvenience incident to every failure to comply with such a contract, some personal injury, of which the willful failure to transport him according to the schedule time is a proximate cause: 5 Am. & Eng. Ency. of Law, 40; Milwaukee etc. Ry. Co. v. Arms, 91 U. S. 489; Alabama etc. R. R. Co. v. Sellers, 93 Ala. 9; 30 Am. St. Rep. 17; 3 Sutherland on Damages, secs. 934938; Martin v. Columbia etc. R. R. Co., 32 S. C. 592; Wilkinson v. Searcy, 76 Ala. 176; Shearman and Redfield on Negligence, sec. 23.

In Alabama etc. R. R. Co. v. Sellers, 93 Ala. 9, 30 Am. St. Rep. 17, where the conductor carried a female passenger beyond the station to which the company had contracted to carry her, and ordered her off the train in a driving rain, with an infant in her arms, and so encumbered with baggage that she could not protect herself by using an umbrella, thereby subjecting her to exposure from which she contracted sickness that lasted for three weeks, the court carefully, and in express terms, rested the decision that the jury might allow. exemplary damages upon the ground, not of the "omission of duty" on the part of the conductor of stopping at the station, but of his willful disregard of her comfort and health in forcing her to expose herself and her infant, instead of letting her off at a house or backing the train to the station. In discussing this doctrine, 3 Sutherland on Damages, section 938, says: "Where a person has bought a ticket and is carried beyond the station for which he is ticketed, without any fault on his part, he has a right of action for at least nominal damages, though he suffers no actual injury, and for such actual injury as he may in fact suffer." After laying down the foregoing

as the ordinary rule, when the conductor, with a full knowledge of the destination of a passenger, merely takes him beyond that point and lets him off without circumstances of aggravation, proceeds to refer with approval to the ruling of the court of Alabama, already cited, that there was evidence in addition that a female passenger was ordered off the train 611 with her infant, the circumstances attending her expulsion were evidence to be considered by the jury of willful wrong on the part of the conductor, and consequent liability on the part of the company to punitive damages. It is an error that will lead to endless confusion to hold that "smart money," which is allowed as a punishment to the wrongdoer, may be recovered in every case where under the common-law practice an action ex delicto would lie: Wanamaker v. Bowes, 36 Md. 42; Wilkinson v. Searcy, 76 Ala. 176; Phelps v. Owens, 11 Cal. 22. All of the actions brought against railway companies for breach of duty arise out of tort, but it is only in those where the elements already mentioned as indicative of bad motive exist, and where, in addition, some personal injury or indignity is sustained, that the plaintiff is allowed to recover more than compensatory damages: Morse v. Duncan, 14 Fed. Rep. 396. In Tomlinson v. Wilmington etc. R. R. Co., 107 N. C. 327, the court said: "The fact that the plaintiff was wrongfully expelled places him in no more favorable attitude, as a claimant of punitive damages, than if he had been rightfully ejected, but in an unlawful or unwarrantable manner. It is an essential prerequisite to the acquisition of the right to recover exemplary damages for wrongful expulsion of a passenger from a train that there should be evidence of undue force, unnecessary rudeness in the application of the force or insult, malice, or some willful wrong accompanying the act of ejecting him, or causing him to leave the train": Rose v. Wilmington etc. R. R. Co., 106 N. C. 168, and authorities there cited.

Justice Clark for the court, in Wallace v. Western etc. R. R. Co., 104 N. C. 452, approving the rule laid down in 3 Sutherland on Damages, first edition, 261, said: "Plaintiff is to have a reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering, both of body and mind, which are the immediate and necessary consequences of the injury."

"In the absence of any sufficient testimony to make the company liable for willful disregard of the intestate's dan

AM. ST. REP., VOL. XLIV.-31

ger," " 612 said the court in Roseman v. Carolina etc. R. R. Co., 112 N. C. 709, 34 Am. St. Rep. 524, "we think the court below erred in submitting the case to the jury.”

It is true that smart money may be awarded by the jury when no actual, but only nominal, damage is shown, as when a conductor rightfully expels a person from a car, or the owner puts a trespasser off his premises, and either of them uses excessive force, or subjects such person to useless indignity: Tomlinson v. Wilmington etc. R. R. Co., 107 N. C. 327; White v. Barnes, 112 N. C. 323. The allowance is made in these instances on account of the assault or rudeness. But, where a trespass is committed by mistake, the case is not governed by the same principle as when a willful assault is committed: Beveridge v. Welch, 7 Wis. 465. It is not suffi cient ground for allowing punitive damages that the defendants, when they committed a trespass, had reason to believe, but did not know, that their acts were wrongful and might result in injury to plaintiff: Inman v. Ball, 65 Iowa, 543. On the other hand, a trespasser is always responsible for such actual damages as legitimately follow from his act, whether he contemplated the result or not (Allison v. Chandler, 11 Mich. 542), while one who assaults another is presumed to have intended the personal injury; that is, the consequence of committing the assault, it being a wrongful act, done purposely and without cause: Goetz v. Ambs, 27 Mo. 33; United States v. Taylor, 2 Sum. 586; Causee v. Anders, 4 Dev. & B. 246. We think that the case at bar is one of those where the plaintiff, under the common-law practice, might have elected to bring his suit either for the breach of contract in failing to bring the plaintiff back on schedule time, or for the disregard of his duty to the public as a carrier, either an action of assumpsit or of trespass. But, because he chose then to sue for the tort and now to allege such facts as show an omission of duty, it does not follow that upon proof of such allegations exemplary damages will be allowed. There has been a failure to show 613 the sort of willfulness that manifests its presence in malice, rudeness, violence, indignity, and reckless disregard of consequences, and there is no evidence that the plaintiff suffered from sickness contracted by exposure incident to the delay, or was subjected, in consequence of the defendant's failure to furnish transportation, to any other personal injury, or to indignity. If neither the intentional and wrongful ex

pulsion of a passenger, not accompanied with undue force (Tomlinson v. Wilmington etc. R. R. Co, 107 N. C. 327), nor the negligent carrying him beyond his destination (3 Sutherland on Damages, sec. 938), after having inspected his ticket or received it, is sufficient evidence of the willful infliction of personal injury to warrant the allowance of punitive damages, we fail to see upon what principle we can hold a railroad company liable to be so punished, because, with a full knowledge on the part of its manager that the company had but two engines, one of which was in the shop at Norfolk for repairs, it undertook to haul to Jamesville and back with the other, not then in good condition, the train on which the plaintiff and others, who had return tickets, were to be carried as passengers, because only of the delay and inconvenience incident to such detention. If the same engine, in consequence of the bad condition of the track, or the engine itself, had, with the cars, been derailed, only those passengers who received bodily injury could have maintained actions against the company and have recovered, as a part of the compensation for the consequences of the accident, exemplary damages. It is not necessary to cite authority in support of the soundness of so plain a proposition, and yet if we sustain the court below the logical result would be that a passenger who is delayed, without suffering bodily injury, by a defective engine, is entitled to smart money, though he could not have subjected the company to such punishment had he escaped unharmed when it was derailed and upset. "Neither negligence without damage, nor damage without negligence, will constitute any cause of 614 action": Shearman and Redfield on Negligence, secs. 23–25. The case of Purcell v. Richmond etc. R. R. Co., 108 N. C. 414, seems to have been confidently relied on to sustain the contention of the plaintiff. The facts in that case were that the plaintiff had purchased a ticket and was waiting, at the time at which it was advertised that the train would stop, at the station where he was to embark, but the cars being overloaded because a circus was to give an exhibition at the station to which the passenger was destined, the conductor did not stop at the station, but left him standing. It was held that the failure to provide sufficient means of transportation, when by reasonable diligence it could have been ascertained that they would be needed, was such evidence of willfulness and gross negligence as to warrant the court in instructing the