The opinion of the court was delivered by
Mr. Justice Pope.This appeal is from a judgment obtained at the October term, 1891, of the Court of Common Pleas for Abbeville County, by the plaintiff against defendant, and is upon three grounds: first, the refusal of defendant’s motion for a non-suit; second, the refusal of the defendant’s motion for a new trial for insufficiency of testimony; and third, for errors of law in the charge of his honor, Judge Kershaw, to the jury.
*1991 Under the decisions of this court, controlling the granting of non-suits and new trials, we see no error here. As to the third ground of appeal, we confess ourselves very much impressed with the force of appellant’s position; so much, in fact, that we feel bound to order a new trial.
2 Before referring to the matters herein involved somewhat carefully, the court feels called upon to notice an error into which the Circuit Judge seems to have fallen. In our view, the plaintiff’s action is for exemplary damages. Such being the case, no judgment for actual damages could have been rendered. We refer to the recent decisions of this court—Spellman v. Richmond, &c., Railroad Company, 35 S. C., 475; Samuels v. Richmond, &c., Railroad Company, Ibid., 493.
3 We see no cause to interfere with the charge of the judge when the same relates to the conduct of the engineer in the employ of the defendant. If, while in defendant’s employ, and in the exercise of the duties of the position for which he was employed, he maliciously, wilfully, wantonly, &c., performed those duties, either with an intention to injure the plaintiff, or with reckless disregard of the safety of plaintiff’s property, the employer is liable, all the questions of fact being for the jury.
Now, as to the alleged misconduct of the train hands, we must say, admitting all that is charged as to such misconduct, that it would be a very stern rule that would hold a railroad company responsible for all the acts of its servants, whether in the course of its employment or not. Suppose a train hand in the employ of the defendant, with a pistol secreted about his person, shoots to death a stranger. Is the defendant responsible for such homicide? Suppose, in firing upon the stranger, he does not slay, but breaks his arm, and that this act is wilful and malicious, will the defendant be liable therefor,? No, no, there must be a limitation to the liability of such defendants. Goddard v. Grand Trunk Railway, 57 Me., 202; Pierce on Railroads, 277. Experience has proven that it is a salutary rule to hold employers responsible for the acts of their employees while performing the duties for which they are employed, if in such performance a reckless or wanton disregard is shown to the *200rights of others, but this is as far.as the law would go. McClenaghan v. Brock, 5 Rich., 27; Reynolds v. Witte. 13 S. C., 18.
It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the cause be remanded to the Circuit Court for a new trial.