ON REHEARING-.
There are only two points mentioned in the petition 'for rehearing not before discussed, — one as touching the instruction set forth in bill of exceptions No. 3. Appellant •claims that giving said instruction is reversible error under -a recent decision of this Court, not yet reported (I presume is meant the case of State v. Staley, 32 S. E. 198), because it assumes as true certain material facts stated in the instruction, “and the law propounded by the instruction is based upon the assumption of these facts, without leaving it to the jury to determine whether or not these facts were proved, or for them to find,” and that in said instruction the following facts were assumed: “(1) That Landers was attempting to ride; (2) That the train had been signaled to leave the yard at Point Pleasant by the conductor; (3) that the train was in motion, and going north on the main track oh its regular trip; (4) that the conductor had taken his position upon the train. These were all facts upon which there was no conflicting testimony, proved by .all the witnesses who had testified in the case on both sides, and do not come within the purview of the case ■edited, which holds that the court should not assume as true material facts in issue before the jury, about which there is conflict of testimony, between which it was the province of the jury to decide, nor should the court assume that such facts were not proven, if there was evidence tending to prove them.
It is also claimed that defendant’s instruction referred to in bill of exceptions No. 6 should have been given, and it was error to refuse it, as follows: “The jury are instructed that, before exemplary damages can be awarded plaintiff for an injury, .although the injury inflicted be done wantonly and willfully, the plaintiff must be without fault on his part,” — and says in its petition for rehearing: “This *507point is not discussed in tbe briefs, nor is it referred to in the opinion of the Court, and, while it is not relied upon for the writ of error, the point clearly arises upon the record, and upon.a rehearing of the case the refusal to give this instruction should be considered by the Court as ground for Reversing the judgment.” The instruction was asked and refused, and, of course, became a part 'of the record, and the point was raised in the record; but the amount of the verdict rendered the ruling of the court in refusing it immaterial, and hence, as stated in the petition, the point is not discussed in the briefs or in the opinion. If this instruction propounds the law correctly, there could be no exemplary damages awarded a trespasser in any case where the injury was inflicted wantonly and willfully; and if the instruction was a proper one, which I by no means concede, the refusal of it did not prejurice the defendant, for surely no punitive or exemplary damages are included in the verdict. If plaintiff is entitled to recover at all, the verdict is not excessive, and only represents compensatory damages. Appellant refers to the dissenting note of Judge BraNNON filed in this case, and to the case there cited of Haluptzok v. Railroad Co., 26 Lawy. Rep. Ann. 730 (s. c. 57 N.W. 144), a Minnesota case, in support of his position that the injury wras not inflicted by the conductor of the train,and therefore defendant is not liable. In that case it is held that, “if a servant who is employed to perform certain work for his master procures another person to assist him, the master is liable for the negligence of the latter, -only when the latter had authority to employ such assistant.” In that case the company was held liable although the agent of the company was not directly authorized to employ the assistant, who was performing the •duties of the agent in moving freight about the depot of defendant, because the assistant had been so long about the depot, although without compensation, except the liberty of the telegraph office, that he was presumed to be there, and so acting with the consent of the general officers. In case at bar the conductor was attending to his duties in person, was not absent, leaving his duties in the hands of an unauthorized agent. The act of ejecting a trespasser, whether done with his own hands, or by another under his order, direction, and in his immediate presence, was his *508own act, as much so as if be bad kicked him off with bis oAvn foot. I see no good reason for changing my opinion in this case, and still think the judgment of the circuit court should be affirmed.
Affirmed by Divided Court.