Horton v. Carolina Coach Co.

Schenck, J. The appellants assign as error the court’s action in trying the case upon the theory of a tort rather than that of a breach of contract. This assignment is untenable for the reason that at the close of the evidence the court announced, in the absence of the jury, that it would not allow the plaintiff to recover upon the theory of both breach of contract and upon an action sounding in tort, and plaintiff stated she would elect to proceed upon the theory of a tort. No exception t.o this *569 action of the court was taken at the time by the defendants, and such exception comes too late after verdict. The exceptions to portions of the charge to the effect that the duty a common carrier owes to a passenger is that as far as human care and foresight could go he must provide safe conveyance, are untenable, since the charge is in accord with the decisions of this Court. Hollingsworth v. Skelding, 142 N. C., 246; Perry v. Sykes, 215 N. C., 39. The appellants preserved exception to the following excerpt from the ■charge: “Where the plaintiff is entitled to recover for the wrongful act of the defendant, she is entitled to recover one compensation, in a lump sum, for all injuries, past, present and prospective, which proximately flow from the defendants’ wrongful act.” This exception is based upon the court’s failure to instruct the jury that any damage which might accrue in the future was limited to the present cash value thereof. This ■exception would be well taken had there been any contention that the plaintiff had suffered prospective injuries, but since there was neither allegation nor evidence of prospective injury, and no contention presented to the jury of prospective injury, we think the mention of “injuries . . . prospective” was a mere lapsus linguae, and harmless. The defendants except to the submission of the issues relative to punitive damages. These exceptions are untenable for the reason that the issues arise upon the pleadings, and the evidence when viewed in the light most favorable to the plaintiff supports them. The evidence, when so viewed, tends to show that the plaintiff was caused to alight from the bus with a small child and baggage, in a lonely place, and before she had time.to collect her wits the bus was hurriedly driven away and that the bus driver was rude in his manner. If the tort is the result of simple negligence, damages will be restricted to such as are compensatory, but if it was willful, or committed •with such circumstances as show gross negligence, punitive damages may be given. Purcell v. R. R., 108 N. C., 414; Ammons v. R. R., 140 N. C., 196. In the record we find No error. Stacy, 0. J., BaeNhill and Winbokne, JJ., are of the opinion that the judgment should be modified and the award of punitive damages disallowed.