Walker, J.,
after stating the case: There should have been separate appeals in this case. The actions were tried together merely for convenience, and were not united or consolidated in .the sense that they became, by the order of the Court, one action. They could not be thus merged under Revisal, sec. 469. The plaintiffs were not united in interest, but alleged separate grievances, and could not', therefore, be joined in the same action under Revisal, sec. 411.
Logan v. Wallis,
76 N. C., 416;
Syme v. Bunting,
86 N. C., 175. The verdict was substantially separate as to each plaintiff and the judgment and appeals should have corresponded, two cases being constituted here. But we will pass by this objection, without intending, though, to make a precedent of the case in this respect, and proceed to consider the case upon its merits.
If the plaintiffs went to the usual place for receiving passengers a reasonable time before the arrival of the train, and were able, ready and willing to pay their fare, they were entitled to be carried to the next station.
Phillips v. Railway,
124 N. C., 123;
Railroad v. Williams,
140 Ill., 275; 1 Fetter on Carriers, sec. 228. If they gave the requisite signal, it was the duty of the engineer to stop the train so that they might take passage on it. If he did not see the plaintiffs, by reason of mere negligence in not keeping a proper lookout ahead of his train, the defendant would be
liable only for actual damages resulting from the failure to stop the train; but if be did see them, and wilfully refused, to stop for the purpose of receiving them on the train as passengers, the defendant would be liable to punitive damages, in addition to those which are merely compensatory, if the jury should see fit to award them. This was expressly decided in
Thomas v. Railway,
122 N. C., 1005, in which it is said: “When the plaintiff presented himself at the flag station a reasonable time before the arrival of the train, for the purpose of procuring passage, and, by reason of the absence of the agent and the failure of the engineer to see the plaintiff’s, signal, the train did not stop for him, be was entitled to the actual damages sustained, which were shown to be seventy-five cents, and the jury, under the instruction of the Court, found a verdict for that sum. If the engineer bad seen the plaintiff’s signal and bad run by without stopping, this would have been a wilful and intentional violation of the plaintiff’s rights, wbicb would have entitled him to recover exemplary or punitive damages. Against such gross disregard of its duty to the public and to the plaintiff by a common carrier the power of punishment by a verdict for smart-money may be invoked,” citing Code, sec. 1963;
Hansley v. Railroad,
117 N. C., 565;
Purcell v. Railroad,
108 N. C., 414;
Heirni v. McCaughan,
32 Miss., 1;
Railroad v. Hurst,
36 Miss., 660;
Wilson v. Railroad,
63 Miss., 352;
Railroad v. Sellers,
93 Ala., 13;
Milwaukee v. Arms,
91 U. S., 489; 2 Sutherland Damages, sec. 937. To these authorities we may well add the recent decisions in
Hutchinson v. Railroad,
140 N. C., 123 (overruling a contrary decision in
Smith v. Railroad,
130 N. C., 304), and
Ammons v. Railroad,
140 N. C., 196. In the case last cited it is substantially said in both opinions that, when a wrong is committed deliberately and in violation of the
passenger’s rights, in a manner and under circumstances of aggravation or humiliation, showing a reckless and lawless disregard of the carrier’s duty to the plaintiff, the law allows damages beyond the strict measure of compensation by way of punishment, and at pages 199 and 200 the principle is thus stated by
Justice Hoke:
“Where a passenger is wrongfully ejected from a railroad train, the demand may be considered as one in tort, and, on an issue as to actual or compensatory damages, he may recover what the jury may decide to, be a fair and just compensation for the injury, including his actual loss in time or money, the physical inconvenience and mental suffering or humiliation endured, and which could be considered as a reasonable and probable result of the wrong done. Exemplary or punitive damages are not given with a view to compensation, but are, under certain circumstances, awarded in addition to compensation as a punishment to defendant ánd as a warning to other wrongdoers. They are not allowed as a matter of course, but only where there are some features of aggravation, as when the wrong is done wilfully and maliciously, or under circumstances of rudeness or oppression, or in a manner which evinces -a reckless and wanton disregard of plaintiff’s rights,” citing
McNeill v. Railroad,
135 N. C., 683;
Head v. Railroad, 7
9 Ga., 358 (opinion by
Bleckley, J.)
; Hale on Damages, sec. 261; 18 Am. and Eng. Enc. (2 Ed.), 1082. The case of
Parrott v. Railroad,
140 N. C., 546, is also in point.
We might well stop here and rest our decision upon the clear and explicit statement of the law as contained in the cases cited but for the fact that, while the Court charged correctly as to punitive damages, it withdrew from the consideration of the jury the question of actual or compensatory damages altogether, and restricted the recovery to nominal and punitive damages, and then charged that they could be recov-
ercd only in cas© tbe jury found that the engineer wilfully refused to stop- the train. This charge was given because, as his Honor stated, the plaintiffs had sired in tort and not in contract, and that mere inattention on the part of the engineer, or a negligent failure to stop the train, would not entitle the plaintiffs to recover, as for a tort, and, further, that they could not. recover actual damages because none had been alleged or proven. We are not aware of any authority distinguishing between tort and contract in respect to the right to recover in an' action of this kind. All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs, which is denominated a civil action (Rev., sec. 354-), and the Court gives relief according to the facts alleged and established. Clark’s Code (3 Ed.), sec. 133, and notes;
Sams v.
Price, 119 N. C., 572;
Bowers v.
Railroad, 107 N. C., 721;
Vorhees v. Porter,
134 N. C., 591.
The complaint in this case is the product of a careful and skilful pleader, knowing his client’s cause of action and able to state it with accuracy and precision, Its allegations are abundantly sufficient to cover every phase of the evidence, and .it is sufficient in substance and in form. The plaintiffs have alleged not only a wilful disregard of their rights, but negligent inattention on the part of the engineer, and whether it is in tort or contract can make no difference. The law does not deal with forms, but with facts. There was error in the charge, so far as it denied to the plaintiffs the right to recovery for mere negligence, and there was also error in the instruction that they were not entitled to recover for having to walk to High Shoals, as that they should have stayed at Harden Mills and taken the next train.
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Walker, J.,
after stating the case: There should have been separate appeals in this case. The actions were tried together merely for convenience, and were not united or consolidated in .the sense that they became, by the order of the Court, one action. They could not be thus merged under Revisal, sec. 469. The plaintiffs were not united in interest, but alleged separate grievances, and could not', therefore, be joined in the same action under Revisal, sec. 411.
Logan v. Wallis,
76 N. C., 416;
Syme v. Bunting,
86 N. C., 175. The verdict was substantially separate as to each plaintiff and the judgment and appeals should have corresponded, two cases being constituted here. But we will pass by this objection, without intending, though, to make a precedent of the case in this respect, and proceed to consider the case upon its merits.
If the plaintiffs went to the usual place for receiving passengers a reasonable time before the arrival of the train, and were able, ready and willing to pay their fare, they were entitled to be carried to the next station.
Phillips v. Railway,
124 N. C., 123;
Railroad v. Williams,
140 Ill., 275; 1 Fetter on Carriers, sec. 228. If they gave the requisite signal, it was the duty of the engineer to stop the train so that they might take passage on it. If he did not see the plaintiffs, by reason of mere negligence in not keeping a proper lookout ahead of his train, the defendant would be
liable only for actual damages resulting from the failure to stop the train; but if be did see them, and wilfully refused, to stop for the purpose of receiving them on the train as passengers, the defendant would be liable to punitive damages, in addition to those which are merely compensatory, if the jury should see fit to award them. This was expressly decided in
Thomas v. Railway,
122 N. C., 1005, in which it is said: “When the plaintiff presented himself at the flag station a reasonable time before the arrival of the train, for the purpose of procuring passage, and, by reason of the absence of the agent and the failure of the engineer to see the plaintiff’s, signal, the train did not stop for him, be was entitled to the actual damages sustained, which were shown to be seventy-five cents, and the jury, under the instruction of the Court, found a verdict for that sum. If the engineer bad seen the plaintiff’s signal and bad run by without stopping, this would have been a wilful and intentional violation of the plaintiff’s rights, wbicb would have entitled him to recover exemplary or punitive damages. Against such gross disregard of its duty to the public and to the plaintiff by a common carrier the power of punishment by a verdict for smart-money may be invoked,” citing Code, sec. 1963;
Hansley v. Railroad,
117 N. C., 565;
Purcell v. Railroad,
108 N. C., 414;
Heirni v. McCaughan,
32 Miss., 1;
Railroad v. Hurst,
36 Miss., 660;
Wilson v. Railroad,
63 Miss., 352;
Railroad v. Sellers,
93 Ala., 13;
Milwaukee v. Arms,
91 U. S., 489; 2 Sutherland Damages, sec. 937. To these authorities we may well add the recent decisions in
Hutchinson v. Railroad,
140 N. C., 123 (overruling a contrary decision in
Smith v. Railroad,
130 N. C., 304), and
Ammons v. Railroad,
140 N. C., 196. In the case last cited it is substantially said in both opinions that, when a wrong is committed deliberately and in violation of the
passenger’s rights, in a manner and under circumstances of aggravation or humiliation, showing a reckless and lawless disregard of the carrier’s duty to the plaintiff, the law allows damages beyond the strict measure of compensation by way of punishment, and at pages 199 and 200 the principle is thus stated by
Justice Hoke:
“Where a passenger is wrongfully ejected from a railroad train, the demand may be considered as one in tort, and, on an issue as to actual or compensatory damages, he may recover what the jury may decide to, be a fair and just compensation for the injury, including his actual loss in time or money, the physical inconvenience and mental suffering or humiliation endured, and which could be considered as a reasonable and probable result of the wrong done. Exemplary or punitive damages are not given with a view to compensation, but are, under certain circumstances, awarded in addition to compensation as a punishment to defendant ánd as a warning to other wrongdoers. They are not allowed as a matter of course, but only where there are some features of aggravation, as when the wrong is done wilfully and maliciously, or under circumstances of rudeness or oppression, or in a manner which evinces -a reckless and wanton disregard of plaintiff’s rights,” citing
McNeill v. Railroad,
135 N. C., 683;
Head v. Railroad, 7
9 Ga., 358 (opinion by
Bleckley, J.)
; Hale on Damages, sec. 261; 18 Am. and Eng. Enc. (2 Ed.), 1082. The case of
Parrott v. Railroad,
140 N. C., 546, is also in point.
We might well stop here and rest our decision upon the clear and explicit statement of the law as contained in the cases cited but for the fact that, while the Court charged correctly as to punitive damages, it withdrew from the consideration of the jury the question of actual or compensatory damages altogether, and restricted the recovery to nominal and punitive damages, and then charged that they could be recov-
ercd only in cas© tbe jury found that the engineer wilfully refused to stop- the train. This charge was given because, as his Honor stated, the plaintiffs had sired in tort and not in contract, and that mere inattention on the part of the engineer, or a negligent failure to stop the train, would not entitle the plaintiffs to recover, as for a tort, and, further, that they could not. recover actual damages because none had been alleged or proven. We are not aware of any authority distinguishing between tort and contract in respect to the right to recover in an' action of this kind. All forms of action are abolished, and we have now but one form for the enforcement of private rights and the redress of private wrongs, which is denominated a civil action (Rev., sec. 354-), and the Court gives relief according to the facts alleged and established. Clark’s Code (3 Ed.), sec. 133, and notes;
Sams v.
Price, 119 N. C., 572;
Bowers v.
Railroad, 107 N. C., 721;
Vorhees v. Porter,
134 N. C., 591.
The complaint in this case is the product of a careful and skilful pleader, knowing his client’s cause of action and able to state it with accuracy and precision, Its allegations are abundantly sufficient to cover every phase of the evidence, and .it is sufficient in substance and in form. The plaintiffs have alleged not only a wilful disregard of their rights, but negligent inattention on the part of the engineer, and whether it is in tort or contract can make no difference. The law does not deal with forms, but with facts. There was error in the charge, so far as it denied to the plaintiffs the right to recovery for mere negligence, and there was also error in the instruction that they were not entitled to recover for having to walk to High Shoals, as that they should have stayed at Harden Mills and taken the next train. If the defendant neglected its dirty in the premises, it-had no right to demand that the plaintiffs remain at the station, where they had been
left'by its train, and not proceed to tbe next station, if their business required that they do so. The authorities we have already cited are to the effect that the jury may include in their verdict damages for the personal annoyance, inconvenience, discomfort and the physical effort incident to their doing so, just as they would have been entitled to recover the expense of a conveyance if they had hired one for the purpose instead of walking.
Thomas v. Railway, sufra.
A direct authority is
Moore on Carriers,
pp. 884 and 886, and to the same effect are
Railway v. Marshall,
64 S. W. Rep., 418;
Hobbs v. Railway,
L. R. 10, Q. B., 111;
Walsh v. Railway,
42 Wis, 231.
In 3 Hutchinson on'Carriers (3 Ed.), sec. 1421, it is said to be difficult, in assessing damages, to distinguish between the consequences of the carrier’s breach of contract and of his tort, and that the damages must be measured by the principles of compensation. In that and the sections immediately following will be found a full and intelligent discussion of the question. In section 1424 the law specially applicable to this case is thus stated: “The inconvenience to which a passenger has been put, or the annoyance to which he has been subjected, a^ the direct and natural consequence of the wrongful act of the carrier, may be taken into consideration in connection with any pecuniary loss he may have sustained thereby, in fixing the amount of damages to which he is entitled ; and it has been held that such personal inconvenience,, from which the passenger has suffered discomfort as its immediate consequence, may be made the substantive ground of an action for damages, regardless of any expense to which he may have been put and without reference to loss'of time or money. This rule has frequently been applied in cases where a passenger has been negligently set down before reaching his station or carried beyond it; also where the carrier has failed to stop the train a sufficient time for the
passenger, wbo bas secured the right to ride, to board it. In these cases he is clearly entitled to recover for the trouble, inconvenience and expense incurred in getting to his destination.” Any other damages, proximately resulting from the wrong and not too uncertain in their nature, may, of course, be included in the assessment. It is established, therefore, by the authorities that when the carrier has wrongfully set the passenger down short-of or beyond his destination, or has failed to stop for him, and has- thereby imposed upon him the necessity of reaching his destination by other means, the carrier must respond in damages for the wrong, whether the action be brought for the breach of the contract or for' the tort, and the rule applies in this case if the plaintiffs presented themselves at the proper place and gave the required signal at such time as enabled the engineer to stop the train for them at the station. 3 Hutchinson on Carriers (3 Ed.), sec. 1429.
The error of the Court in confining the plaintiffs’ right of recovery to the narrow limits stated in the charge entitles them to another trial.
New Trial.