Edwards Ex Rel. Edwards v. Southern Railway Co.

Allen, J. The motion to nonsuit is insisted upon in this Court, principally upon the ground of a variance between the allegation and the proof, in that the complaint alleges that the plaintiff was ejected at Eutherfordton, and the proof is he was ejected at Coxe’s Crossing; but the whole record shows that there was no controversy as to place, and the Eevisal, see, 515, provides: “No variance between the allegation in a pleading and the proof shall be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action upon the merits.” The prayer for instruction asked by the defendant was properly denied. Construing the verdict with the charge, the jury has found that the plaintiff was a passenger and had given his ticket to *282 the conductor, and that he was expelled from the train against his will. If so, his expulsion was wrongful, and gave the plaintiff .a right of action, and the good faith of the conductor could not defeat the action, and would only be material on the question of punitive damages. Ammons v. R. R., 138 N. C., 555. The case of McGraw v. R. R., 135 N. C., 264, is not in point. In that case, as the train was leaving Charlotte the plaintiff jumped on the platform of the baggage car, and the conductor testified that, “When I got to the front end of the mail car the train had'begun to move, and I saw these two men up there. About the. time I got there the baggage-master stepped up on the other side. I told the men to come down. They did not get down, and in order to get them on the ground before the train got up too much speed, I "reached up and pulled them down and let them light on the ground. When I put the second one down I caught on the back end of the same car. I just caught hold of them and pulled them down. They did not resist. I had no conversation with them; did not see any ticket; did not suppose for a moment that they had any ticket, or they would not be there, because it was not a place for passengers, and they could not'pass from that end of the car to the other. There is-no doorway from the mail car to the baggage car. .Passengers are not allowed to go through them at all.” On appeal it was held to be error to charge the jury, in any view of the evidence, to answer the issues against the defendant, because the plaintiff, according to the conductor, was where passengers had no right to be. The instructions given to the jury and excepted to are fully sustained by the authorities. The exceptions for failure to give certain instructions on the issue of 'punitive damages need not be considered, because his Honor expressly told the jury there was no evidence to sustain the plaintiffs allegation of punitive damages, and refused to submit thé issue. There are other exceptions in the record, which we have examined, and in which we find No-error.