
    J. A. McCOLMAN v. ATLANTIC COAST LINE RAILROAD COMPANY.
    (Filed 21 May, 1909.)
    Carrier of Passengers — Contracts — Charterer of Trains — Negligence — Verdict—Exemplary Damages — Immaterial as to Issue.
    In an action for exemplary damages for the alleged wanton and willful failure of defendant carrier to comply with its contract to furnish and run for plaintiff an excursion train, the verdict of the jury, under competent evidence and a properly framed issue, finding that the defendant was not guilty of any breach of duty thereunder, puts an end to the action and renders unnecessary the form of the issue submitted upon the question of defendant’s wanton and willful acts.
    ActioN tried before Long, J., and a jury, at October Term, 1908, of Scotland.
    The record discloses the following case:
    Plaintiff, on 5 July, 1904, entered into a contract with defendant company as “charterer” of an excursion train, consisting of one baggage car and not less than five passenger coaches, to be run from Gibson, N. C., to Wilmington, N. O., and return. The schedule was set out in the contract, “subject to such changes as may be made necessary for the safe operation of the train by other train schedules of the company and such unavoidable delays as may be occasioned by damages to the equipment of the company.” The other provisions of the contract are not material to tbe decision of this appeal. The train was furnished in accordance with the contract, and the excursion run oh 27 July, 1904. It seems that, by reason of the weight of the rails on the portion of the road from the main line to Gribson, it was necessary to use a light engine, which was exchanged at Fayetteville for another of heavier weight. On the return trip, when the train reached Fayetteville, some difficulty was experienced in making- the exchange, and a delay occurred of some five hours, from 11 o’clock P. M. until sometime the following morning. The plaintiff alleged that the engine was defective and of insufficient capacity, that the cars were not supplied with water, and that in this and other respects the defendant company was guilty of reckless, wanton and willful negligence, whereby he sustained large damages, etc. The plaintiff, in apt time, requested the court to submit the following issues to the jury:
    1. “Did the defendant wrongfully fail to transport the plaintiff, as alleged in the complaint ?
    2. “Was the failure to transport the plaintiff willful and wanton ?
    3. “What compensatory damages, if any, is the plaintiff entitled to recover ?
    4. “What exemplary damages, if any, is the plaintiff entitled to recover?”
    The court declined to submit the issues, and the plaintiff excepted. The following issues were submitted to the jury:
    1. “Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint ?
    2. “Was the plaintiff injured by the wanton and willful negligence of the defendant, as alleged in the complaint ?
    3. “What damages, if any, has plaintiff sustained?”
    Plaintiff excepts.
    The jury responded to the first issue “No,” and did not answer the second and third. Judgment was rendered, upon the verdict, for defendant, and plaintiff excepted and appealed. The exceptions aré discussed in the opinion.
    
      Gibson & Russell for plaintiff.
    
      McLean, McLean & Snow for defendant.
   Connor, J.

The plaintiff noted a number of exceptions to tbe ruling of bis Honor upon tbe competency of testimony. Tbey were not pressed on tbe argument, and we find no merit in tbem. It was conceded tbat plaintiff did not sustain -any substantial damage other than inconvenience and discomfort. Tbe portion of tbe charge to which exception was taken and pressed upon our attention is as follows: “Tbe plaintiff must also show tbat be received injuries as tbe direct and proximate cause of tbe alleged negligence by tbe defendant.” “Has tbe plaintiff satisfied you, by tbe greater weight of evidence, tbat tbe defendant was negligent, and has be also satisfied you, by tbe greater weight of evidence, tbat as tbe result and proximate result of tbat negligence tbat be himself suffered tbe injuries of which be complains ? If so, your answer to this issue would be ‘Yes.’ But if be failed to so satisfy you, by tbe greater weight of evidence, your answer to tbe first issue would be ‘No.’ ” Tbe learned counsel earnestly contends tbat if bis Honor bad submitted tbe issues tendered by him, and tbe jury bad found tbat defendant was guilty of a breach of tbe duty which it owed him as a passenger, be would have been entitled to nominal damages, which would have entitled him to ask for punitive damages upon tbe theory tbat tbe negligence was willful and wanton. Tbe difficulty which be encounters is found in tbe fact tbat upon a properly framed issue tbe jury acquit tbe defendant of any breach of duty or negligence. It is difficult to see bow tbe question of punitive damages can arise when no cause of action is established. Tbe plaintiff’s rights and the defendant’s duty are fixed by tbe terms of tbe contract, and this tbe jury finds has not been broken. This put an end to tbe action.

We have examined tbe record and find

No Error.  