
    J. H. EVERETT v. RECEIVERS OF RICHMOND and DANVILLE RAILROAD COMPANY.
    
      Action for Damages — Trial—Instructions—Weight of Evidence —Railroads—Negligence—Frightening Horses — Wantonness.
    1.. Where, in the trial of an action, the plaintiff has produced some, or more than a scintilla of, evidence in support of his contention, or there is conflicting evidence, it is the province of the jury to determine its weight and it would be improper to instruct the jury that if they believe the evidence the plaintiff cannot recover.
    2. It is not error to charge that plaintiff cannot recover unless a locomotive engineer blew a whistle negligently, wantonly or maliciously, for the purpose of frighteniug plaintiff's horses, inasmuch as the word “negligently” is used in such a connection as to clearly import such a degree of negligence as would be nearly akin to wantonness or malice.
    3. An act is wantonly done when it is needless for any rightful purpose and manifests a reckless indifference to the rights and interests of another.
    Action for damages for the killing of the horses of plaintiff through the negligence and wanton conduct of defendants as Receivers of the Richmond and Danville Railroad Company, tried before Bryan, J., and a jury, at Fall Term, 1896, of Swain Superior Court. There was a verdict for the plaintiff and defendants appealed. The facts appear in the opinion of the Court.
    
      Mr. T. II. Cobb, for plaintiff.
    
      Messrs. F. II. Busbee, A. B. Andrews, Jr., Q. F. Bason, for defendant (appellant).
   Douglas, J.:

This is an action for damages for alleged injuiy sustained by killing horses of plaintiff alleged to have been frightened by unusual and unnecessary noise made by. the engineer’s sounding the whistle. The horses became unmanageable, plunged into the river and were drowned. The carriage was damaged and the harness ruined. The usual issues were submitted, and found for the plaintiff The only exceptions appear to the charge as given and the failure to charge as requested by defendant, as follows:

“At the close of the evidence the defendant requested the •Court in writing to give the following special instructions:
1. If the jury believes the evidence the plaintiff is not entitled to recover, and the answer to .the first issue should be “No.”
This instruction ivas refused, and the defendant excepted.
2. Unless the jury believes that the person who blew the whistle blew it wantonly or maliciously, for the purpose of frightening the horses, the plaintiff is not entitled to recover, and the answor to the first issue should he “No.”
The Court modified this instruction by inserting the word “negligently” between the words “it” and “wantonly,” and to this modification defendant excepted.
3. If the jury believe that the person who blew the whistle saw the team and saw that it was frightened, or knew that it was in danger of being frightened, still it was his right and his duty to blow the signal for the station, and unless he blew it in an unusual manner, or when it was not necessary, or for the purpose of frightening the horses, the answer to the first issue should he “No.”

This instruction was given.

The Court charged the jury as follows:

A railroad company is not liable when an injury insults from horses being frightened by the noises or appearance of the train, when due and proper care in the management of the train is used. Tf the engineer wantonly and maliciously made unnecessary noise for the purpose of scaling the horses, and thereby the injury was brought about in the loss of the horses, defendant would be liable.

■Negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury.

(a). An act is wantonly done, when it is needless for any rightful purpose and manifests a reckless indifference to the rights and interests of another.

Exception. — (b). And to so much of the charge as is between (a) awl (b) defendant excepted.

Maliciously done means an act done with a desire or purpose to injure. A railroad is not liable for blowing whistle and ringing bell, while exercising this right in a lawful and reasonable manner, for injuries occasioned by horses, when driven upon the highway, taking fright at such noises.

Taking the charge as a whole, we see no substantial error. The first instruction asked could not properly have been given in view of the conflicting evidence. To do so, the Court would be compelled to pass upon the weight of the evidence, which is a question exclusively for the jury, as there was certainly more than a mere scintilla. Hardison v. Railroad, 120 N. C., 492; Spruill v. Insurance Co., Ibid, 141, and cases therein cited.

Tlie second exception is to the insertion of the word “negligently” before the word “wantonly” in the second prayer. There are so many degrees of negligence that the word used disjunctively without further explanation might mislead the jury, but taken in connection with the remainder of the charge it seems sufficiently clear to us, and was doubtless so to the jury, that the Court intended such a degree of gross negligence as would be nearly akin to wantonness or malice. In Tillett v. Railroad, 115 N. C., 662; Morgan v. Railroad, 98 N. C. 247, and Doster v. Street Railway, 117 N. C., 651, all cited and relied on by defendant’s counsel, the w6rd “negligence” is used as the proper term, leaving it to the Court to instruct the jury as to what would be negligence under the circumstances of each case.

We see no merit in the defendant’s third exception, as the part of the charge to which the exception is taken is substantially adopted from the case of State v. Brigman, 94 N. C., 888, and the cases therein cited. “The illegal act is wanton, when it is needless for any rightful purpose, without adequate legal provocation, and manifests a reckless indifference to the interests and rights of others.” State v. Brigman, supra. “Wantonness is action without regard to the rights of others.” Welch v. Durand, 36 Conn., 182. “Wantonly means not having a reasonable cause.” Clark v. Haggins, 103 E. C. L. Report, 543.

As the issues were found by the jury on competent evidence and under proper instructions, the judgment is affirmed.

Affirmed.  