The opinion
Brown, J.
This case was before us at a former term upon a demurrer
ore tenus
to the complaint, and is reported in 147 N. C., 357 , which is referred to as to its general nature. The Superior Court sustained the demurrer, and upon appeal this
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Court reversed tbe judgment, bolding that upon tbe allegations of tbe complaint tbe plaintiff was entitled to nominal damages. Thereafter, by leave of tbe lower court, an amended complaint was filed, to wbicb tbe defendant filed an answer.
Tbe defendant excepted to tbe submission of tbe second and fourth issues. Under tbe allegations of tbe amended complaint it was
proper to
submit those issues, as they were clearly raised by tbe amended pleadings. We have examined tbe twenty-five assignments of error set out in tbe record, but do not deem it necessary to discuss them
seriatim.
1. The defendant requested tbe court to instruct
the
jury that tbe plaintiff can' recover only nominal damages. Tbe court declined, and defendant excepted. Tbe ease presented upon tbe amended pleadings and tbe evidence is essentially different from that jiresented upon tbe demurrer. Tbe evidence tends to prove that tbe plaintiff bad tendered bis fare to'. McFarland, a regular scheduled station on tbe defendant’s road; that be informed tbe conductor that bis child was dead and would be buried, that afternoon, and repeatedly begged the conductor to stop there. It is in evidence that tbe conductor bad orders to stop at McFarland and take tbe siding in case be arrived later than 1:20 ■ P. M.; that tbe conductor examined bis watch when-he neared McFarland and said it was 1:22 P. M. Nevertheless, be did not stop, although repeatedly urged by tbe plaintiff to do so. Tbe plaintiff bad a right to have tbe train stop at McFarland in obedience to orders, and under tbe unusual and painful circumstances of this case tbe extraordinary and unfeeling conduct of tbe conductor is some evidence of a willful, wanton and reckless disregard of tbe plaintiff’s rights, sufficient to be submitted to tbe jury in connection with tbe question of punitive damages.
2. It is further contended by tbe defendant that in any view of tbe evidence tbe plaintiff is guilty of such contributory negligence as bars recovery. 'We are not disposed to relax tbe just .and reasonable rule laid down in tbe former opinion in this •case, and quoted from tbe opinion in
Johnson v. R. R.,
130 N. C., 488 , but there are facts and circumstances in evidence wbicb we think warranted tbe judge below in submitting tbe matter under proper instructions to tbe jury.
It must be admitted that tbe temptation to alight from a moving train .to reach tbe body of a beloved child is very great, almost irresistible. Tet that would not have excused tbe plaintiff. But there are facts and circumstances in evidence that tbe conductor bad not only slowed tbe train down very much at McFarland, but that he invited and encouraged tbe plaintiff to
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jump, and that just as tbe plaintiff was about to jump witb bis band bold of tbe rail, tbe train started up more rapidly and threw bim to tbe ground. It is generally recognized that passengers are in many cases excused from the imputation of negligence where they obey tbe directions or advice of tbe trainmen, whom tbe passenger may justly suppose, by reason of their experience, to be better able to judge whether a given act is dangerous than tbe passenger himself. Thompson on Neg., sec. 2879;
Johnson v. R. R.,
130 N. C., 490 . Tbe charge of tbe court below upon this feature of tbe case was a clear statement of tbe law as settled by repeated decisions. Submitting tbe question of tbe plaintiff’s negligence to tbe jury, instead of imputing negligence to him as matter of law upon bis own evidence, we think was not erroneous under tbe evidence in this record.
Upon a careful review of tbe whole case we are of opinion that no substantial error was committed, certainly none that warrants another trial.
No error.