CLARK, C. J. concurring. Civil action, tried upon certain issues, the first of which reads as follows:
Was the plaintiff injured by the wanton negligence of the defendant, as alleged? Answer: "Yes."
(398) The other issues relating to contributory negligence and damage were found for the plaintiff. From the judgment rendered, the defendant appealed. The defendant excepted to the submission of the first issue, and also requested the court to instruct the jury that there is no evidence of wanton negligence. His Honor erred in submitting the issue. There is no allegation in the complaint, and there is no evidence, that the defendant wantonly as well as negligently injured the plaintiff. Issues are raised by the pleadings, and where the pleadings do not distinctly and unequivocally raise an issue, it should not be submitted. Sprague v. Bond, 113 N.C. 552.
While there is nothing in the record tending to prove wantonness upon the part of defendant's engineman, there is ample evidence of *Page 459 neglect. The defendant's branch road from Sanford to Wilmington crosses its main line from Washington to Florida within the limits of Fayetteville. The plaintiff, a colored physician, on his way home, was stopped by a freight train on this crossing and, while waiting for it to move, was standing on the angle between the two tracks and some 35 feet from the track, when the midnight "flyer," the fast passenger train on the defendant's main line, crashed into the freight train at the crossing and a small stick of timber thereon — a cross-arm for a telegraph line — was hurled 35 feet, striking and seriously injuring the plaintiff. The facts are not in dispute, and the defendant put on no evidence.
While the insertion of the word "wanton" in the issue was error, yet upon an examination of the charge of his Honor we are satisfied that it was error of which the plaintiff alone could complain, because it threw upon him the burden of proving that the defendant acted wantonly, recklessly, and without due regard for the rights of the plaintiff.
It is contended by the defendant that the submission of such an issue tended to enhance the quantum of damages, and we were at first inclined to think so; but his Honor instructed the jury very clearly that they should find as damages only such sum of money as will compensate the plaintiff for injuries which are the direct result of the wanton negligence of the defendant.
He told the jury to "answer in such sum as you think in your judgment will compensate him." We think it very clear from his Honor's charge that he restricted the plaintiff's recovery to actual or compensatory damages only, and did not allow anything for punitive damages.
We are of opinion, upon a review of the entire record, and all the assignments of error, that there is no reversible error.
No error.