February 28, 1936. The opinion of the Court was delivered by In this case, we concur in so much of the opinion prepared by Mr. Justice Bonham as holds that there is testimony to support the verdict of the jury as to actual damages. We also agree that the record sufficiently shows that a motion was made by the defendant for a directed verdict as to punitive damages. We do not concur in his conclusion that the motion for a directed verdict as to punitive damages should have been directed by the trial Court.
The testimony shows that the defendant, through its agents and servants, was engaged in burning off the roadbed lying between the track and a ditch running parallel therewith. The right of way, however, extended beyond the ditch for a width of 40 feet, and on this additional width there was crab grass two feet high, which was dry and highly combustible. The fire escaped from the roadbed, jumped the ditch, ignited the crab grass, and from there spread to the adjoining lands of the plaintiffs. The evidence on behalf of the plaintiffs shows that at the time the servants of the defendant set out this fire a high wind was blowing. The witnesses for the defendant testified that the wind was blowing, but that the fire could have been controlled if the wind had not risen higher during the progress of burning off the roadbed. The section master who was in charge of this work and who was personally supervising it testified as follows:
"Q. You started burning then right on the rear track bordering the Anderson property, and at that time there was a wind blowing? A. Yes, it was blowing.
"Q. And when the fire got away it just swept through before you could get it under control? A. The wind was blowing when we started, but not to the extent if the wind hadn't risen higher we couldn't have extinguished it. And if it hadn't hit the cornfield grass — we burn and scrub our right-of-way every year, and it is not heavy, but this cornfield grass hadn't been scrubbed and when it hit that it went on out into the woods before we could get it out. *Page 369
"Q. When you speak of the wind rising suddenly, do you mean a whirlwind? A. The whirlwind goes round. This was more a puff, a heavy wind.
"Q. During your experience as foreman burning rights-of-way you have had winds spring up suddenly? A. Yes, sir.
"Q. And you have learned to take precaution against those sudden gusts that are liable to spring up? A. It is liable to happen any day and any time. We have to burn our rights-of-way, we are instructed and have to burn our right-of-way and the wind is liable to rise at any time.
"Q. And you know that from your experiences? A. Yes, I know it. I realize that."
The evidence does not disclose what, if any, precautionary measures were taken by the defendant's servants to prevent a sudden gust of wind spreading the fire beyond the ditch. The testimony does tend to show that the defendant's servants had experienced these sudden gusts before when burning off the right of way, and had learned to adopt measures to keep the fire within proper bounds; that is, in the nomenclature of the law pertaining to fire insurance, prevent a "friendly" fire from becoming a "hostile" fire. The action and effect of a wind upon fire is known of all men. The question to be decided is, Was there evidence on the issue of punitive damages to be submitted to the jury? We think there was. It is not suggested that the defendant's act in setting out the fire upon the roadbed was unlawful or unlawful in purpose. It was not necessary for the plaintiffs to prove that the defendant had a special intent to injure plaintiffs by so doing.
We do not think that the position of the appellant is tenable that, in order to recover punitive damages, there must be an intentional act, done with the purpose to do a wrong to the person affected. See Thomassonv. Southern Railway, 72 S.C. 1, 51 S.E., 443.
The instructions given by the trial Judge to the jury in the Court below fairly and correctly covered the law applicable *Page 370 to the facts in this case on the question of punitive damages, and are in accord with the holdings of this Court in Norris v. Greenville, S. A. Ry. Co., 111 S.C. 322,97 S.E., 848, 850, where it was said: "These exceptions cannot be sustained, for the reason that not only is the conscious invasion of the rights of another in a wanton, willful, and reckless manner an act of wrong, but also when the wrongdoer does not actually realize that he is invading the rights of another, provided the act is committed in such a manner that a person of ordinary reason and prudence would say that it was a reckless disregard of another's rights" — (cited and approved in Bailey v. Smith, 132 S.C. 212,213, 128 S.E., 423, 427).
The same rule was announced by this Court in Tollesonv. Southern Railway, 88 S.C. 7, 70 S.E., 311; Eberle v.Southern Railway Co., 98 S.C. 89; 79 S.E., 793; Geddingsv. Atlantic Coast Line R. Co., 91 S.C. 477, 486,75 S.E., 284.
It was for the jury to say under the evidence whether the act of the defendant's agents was committed in such a manner that a person of ordinary reason and prudence would say that it was a reckless disregard of the rights of the plaintiffs.
It was held in Cole v. Blue Ridge Railway, 75 S.C. 156,55 S.E., 126, quoting from Proctor v. Southern RailwayCo., 61 S.C. 170, 39 S.E., 351, that negligence may be so gross as to amount to recklessness, but, when it does, it ceases to be mere negligence, and assumes very much the nature of willfulness; so much that it has been more than once held in this State that a charge of reckless conduct will justify the jury, if the same be proved, in awarding punitive, vindictive, or exemplary damages.
All exceptions are overruled.
It is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE STABLER and MR. JUSTICE CARTER concur. *Page 371
MR. JUSTICE BONHAM dissents.
MR. JUSTICE BAKER disqualified.