Smith v. Wilmington & Weldon Railroad

Montgomery, J. At the close of the plaintiffs’ evidence, the defendant’s motion for judgment as of nonsuit was allowed, and the plaintiff appealed. The gravamen of the action, indeed the only cause of action set out in the plaintiffs’ complaint, was the alleged reckless, careless and negligent conduct on the part of the defendant’s conductor in carrying ber past and beyond the point to which she had bought her ticket, and putting, her off in the rain and in an unsuitable place. The exact language of tile complaint in respect to- the alleged negligence is as follows: [305] “That tbe conductor on said train recklessly, carelessly, negligently and unlawfully, and in absolute disregard of bis duties to ber, carried said plaintiff past and beyond ber destination about threeffourths of a mile, and despite remonstrance on ber part, stopped tbe train and put off said plaintiff and ber cbildren in a low, wet and swampy place, and in tbe midst of a steady rain and at a considerable distance'from any shelter or other protection from said rain, and where it was neither likely nor probable that any one would meet said plaintiff and ber cbildren; all of which was done to tbe serious inconvenience, annoyance, damage and injury to said plaintiff and cbildren to tbe amount of ten thousand dollars.” There was no evidence that she suffered any bodily barm, or that she was put to any expense in reaching ber home from tbe point at which tbe conductor helped ber to alight. It is true that she said she got wet and was laid up for several days, and was exhausted and very much fatigued; but ber physician, who prescribed for her that very morning, testified that for sometime she bad been suffering from nervous prostration and functional disorder of tbe heart, and that ber condition was such that she would have been sick anyway. Just immediately before tbe occurrence, a summer thunderstorm was approaching, and all of ber evidence showed that she would have become wet from tbe rain if she bad stopped at tbe point where tbe conductor bad agreed to stop tbe cars for ber to get off. And besides, there was no bouse or building at tbe agreed point of her destination, and no one awaiting ber upon ber arrival. In fact, tbe plaintiff not only did not claim in ber complaint, as we have seen, any damages other than such as were alleged to have arisen by reason of tbe conductor having put ber off at tbe place and in tbe manner be did, but in ber testimony also, in answer to a question on her cross-examination, she said: “I sued for damages for being put off out there where there was no one to meet me [306] and away from any bouse or protection of any kind, and in tbe rain.” It is significant, too, in tbis connection, that although sbe testified that sbe bad consulted counsel with reference to bringing suit in tbis matter, tbe summons was not issued until tbe March following tbe time of tbe occurrence— á-th of July, 1899. She testified herself also: “I was not put to any additional financial expense by reason of being put off at Cameron instead of at Stewarts.” In tbe course of tbe trial tbe plaintiff undertook to show that sbe suffered mental suffering, and sbe was asked tbis question by her counsel: “State whether or not there was any mental suffering by reason of tbe treatment of tbe defendant?” And bis Honor very properly, in our opinion, refused to allow tbe question. We do not intend to' extend to that extent tbe doctrine of mental anguish. So> far as we now recall, that doctrine has only been allowed in tbis Court in cases where there has been personal injury, except in cases where telegraph companies bare been negligent in their failure to send and deliver messages concerning personal or domestic affairs, such as tbe illness or death or something equally as serious, between persons who are near of kin. Neither do we think that there was any evidence tending to prove that tbe defendant’s conductor, in bis conduct, did or said anything which would justify tbe plaintiff’s attempt to recover as for punitive or exemplary damages. Dr. McKenzie, a witness for tbe plaintiff, testified that tbe conductor was considered “a very gentlemanly conductor.” On tbe present occasion be told the plaintiff that be was unable to stop tbe train, a long freight train with one passenger coach in tbe rear, at tbe point be bad agreed to stop for her benefit; that be was unable to communicate with tbe engineer tbe signal to stop. He gathered together her parcels or bundles, and, in her own language, “helped me and tbe children off tbe train by lending bis band to us, and when we got to the [307] end of tbe car Captain Loekamay went out ahead of ns.” Sbe also said tbat tbe conductor stood at tbe end of tbe car on tbe ground and remained there during tbe entire time tbe train was at Cameron, and tbat be was talking' witb ber some of tbe time. It was also' in evidence that very near tbe point where tbe cars were stopped were residences and homes, and in one of them (Mr. Cameron’s) tbe plaintiff and ber children found shelter and protection. So it appears from tbe evidence tbat while tbe conductor may not bare measured up> to tbe standard recognized by tbe plaintiff in point of politeness, be yet in law fulfilled every duty imposed upon him as conductor of tbe defendant’s train in tbe acts of helping ber to alight from tbe car and in attending upon ber after sbe alighted and before tbe train moved off. If it were admitted tbat tbe plaintiff was wrongfully put off tbe train, sbe would be entitled to recover only the actual damages tbat she would have sustained therefrom, and if tbe act was accompanied with unnecessary force or other circumstances calculated to humiliate ber, or to wound ber pride, or witb a reckless indifference to consequences, insult or rudeness, showing malice, such damages might have been allowed by tbe jury as they should think were warranted by tbe facts, in tbe way of punitive damages. Rose v. Railroad, 106 N. C., 168; Hansley v. Railroad, 117 N. C., 565, 32 L. R. A., 543, 53 Am. St. Rep., 600. Tbe evidence discloses no such conduct on tbe part of tbe conductor. It is true tbat tbe plaintiff said tbat “the conductor treated me in a rough, indifferent manner, was mad and spoke in a harsh tone,” but tbat evidence, when taken together witb what tbe conductor actually did under all tbe surroundings, makes it perfectly clear to us tbat what sbe complained of was a matter of taste and not of substance. In tbe confusion of tbe storm, tbe downpour of rain, tbe fright of tbe children probably and her [308] own. weak and nervous condition, combined to cans© ber to take an extreme view of tbe situation and to do the conductor an injustice in her censure of him. No Error.