(concurring in part): Concurring in the opinion in so far as it reinstates the authority of Purcell v. Railroad, 108 N. C., 411, the vast and growing importance of the principales involved in this case to every one who shall travel over, or ship freight by, these great public agencies, forbids my acquiescence in some of the reasoning relied on in the present case.
In the recent case of Railroad v. Prentiss, 147 U. S., 106, Mr. Justice Gray commends the historical instruction of Chief Justice Pratt (afterwards Lord Camden) that “a jury have it in their power to give damages for more than the injury received. Damages are designed not only as a satisfaction to the injured person but likewise as a punishment to the guilty to deter from any such proceeding for the future, and as a prof of the detestation of the jury of the action itself.” And Mr. Justice Gray, for the Court adds, “The doctrine is well settled” that the jury in addition to compensatory damages “may award exemplary, punitive or vindictive damages sometimes called smart money, if the defendant has acted wantonly_ or with criminal indifference to civil obligations.” In the present case his Honor below charged the jury that “If defendant failed to provide proper means for transportation of passengers, as for instance the plaintiff in this case *572as they bad undertaken to do, wantonly and wilfully, tbe jury may give punitive or punishing damages: and tbe amount of such is largely a matter for the jury to determine, but the court will supervise so as to see that no wrong is done.” This sums up in a few words the whole controversy in this case and. it is this charge which “is this day brought into question.” In Purcell’s case, supra, this Court in a unanimous opinion laid down the wholesome and it would seem the necessary principle that for the wilful and wanton violation by a railroad corporation of tbe regulations prescribed for its control and conduct by the law-making power (Code, Sec. 1963) such corporation is liable to punitory damages. These words Uwilful and wanton” have a well defined meaning in our courts and have been construed in State v. Brigman, 94 N. C., 888, and State v. Morgan, 98 N. C., 641, to mean “purposely, intentionally and with reckless disregard of the rights of others.” Our courts have upheld the authority to grant punitory damages in all proper cases, and if they could ever be granted against a corporation in any case it would seem certainly they should lie whenever the conduct of its officials has shown a “wilful, intentional violation” of the statutes enacted hy the legislature for the control of these corporations and a “reckless disregard of the rights of the traveling public” or shippers of freight.
The sovereignty which through its agents created and gave existence to this corporation has recognized this rule as wholesome and just, for in the Act creating the Railroad Commission (Act 1891 Ch. 320, Sec. 11), it is provided in almost identically the same words (indeed, the very same, leaving out the word “wantonly”) that for a “ wilful violation of the rules and regulations made by the Commissioners, Railroad companies are liable for exemplary damages.” It would be the strangest of anomalies if a railroad corpor*573ation is liable to exemplary damages for the wilful violation of the regulations of the railroad commission but is not thus liable for the wilful and wanton violation of the regulations prescribed by the legislative power which created them both. And we should have this further anomaly in the law : A telegraphic dispatch announcing the critical illness of a near relative is sent. If not delivered promptly the sendee, as is properly held by numerous decisions of this Court, is entitled to exemplary damages though he has suffered no personal injury nor has any indignity been inflicted upon him. Young v. Telegraph Co., 107 N. C., 370; Thompson v. Telegraph Co., Ibid, 449; Sherrill v. Telegraph Co., 116 N. C., 654. The reason is that, being put upon notice by the tenor of the dispatch, it is wanton and wilful violation of the duties for which it was incorporated for the company to fail to deliver the message promptly, and the highest reasons of public policy require that exemplary damages should be imposed. Now, suppose the dispatch is delivered and the sendee starts for his home, but the railroad corporation finding that it can send a larger number of passengers to another point, stops its car — as in the present case they stopped it because it was cheaper to send a broken piece of machinery to Norfolk to repair than to keep necessary repair shops or another engine — and, by this wilful and wanton violation of its statutory duties to furnish sufficient transportation, the recipient of the telegram does not reach the bedside of his dying wife, would it not be an anomaly that, for a wilful and wanton violation of its duty to deliver the telegram promptly, the telegraph company is liable to exemplary damages, but, for an equally wilful and wanton violation by the railroad corporation to transport the passenger according- to schedule, that company is only liable to pay the passenger’s board bill during his *574detention? In a case where the corporation failed to bring the passenger home on his round-trip ticket, as the defendant in this case failed to do, punitive damages were sustained in Head v. Railroad, 19 Ga., 358.
But it was contended on the argument that though the railroad corporation is liable for the wilful and wanton violation of its statutory duty in running its trains by a station without stopping and thus failing to take on a passenger when there happens to be a vacant seat, it is not so liable if, with full notice of more passengers waiting at a station than the cars can carry and in time to add more cars, it fails to do so. It is difficult to recognize the authority to hold that this act of wilful violation of its statutory duties and wanton disregard of the rights of the public does not subject the corporation to punitive damages while the same wilfulness and wantonness in running by a station without stopping does so subject the corporation if there happens to be a vacant seat. It is the same wilfulness and wantonness to fail to have sufficient seats when the corporation has notice in time and cars in its control as not to stop to fill the empty seat. The statute authorizes no such discrimination. It provides (Code, See. 1963) “Every railroad corporation — .shall furnish sufficient accommodation for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of stopping and _at the usual stopping places established for receiving and discharging passengers and freight for that train_ and shall be liable to the party aggrieved in damages for any neglect or refusal.” The statute nowhere intimates any distinction whereby one wilful and wanton violation of the statute is cause for exemplary damages and that another equally wilful and wanton violation of the same statute incurs no such liability.
*575The reasonable and impartial rule laid down by a unanimous Court in Purcell’s case is that if the breach of the statute “was mere inadvertence or negligence or was caused by an unforeseen number of passengers presenting themselves which rendered it unsafe to take a greater number aboard, and the company could not by reasonable diligence have increased the number of cars, then the plaintiff could only recover compensatory damages. If however. — the defendant by reasonable diligence couid have ascertained that the number of cars was insufficient and made no effort to supply the deficiency, but, regardless of its duties and of the rights of those whom it had invited to present themselves at its regular station for passage, or if having room for additional persons it passed without stopping, this displayed a gross and wilful disregard of the rights of the plaintiff which entitle him to recover punitive damages.” This is sustained by numerous authorities in other States. Heirn v. McCaughan, 32 Miss., 1; Railroad v. Hurst, 36 Miss., 660: Silver v. Kent, 60 Miss., 124; Wilson v. Railroad, 63 Miss., 352; Railroad v. Sellers, 93 Ala., 9; 3 Sutherland Dam., Sec. 937. It was urged on the argument that it would be difficult often to decide what state of facts would or would not constitute a wilful and wanton disregard of statutory duties. But that does not authorize a judicial repeal of the statute either in whole or in part. It must in each case be determined whether the facts«proved show a “wilful and wanton disregard of statutory regulations” and if they do the jury is empowered to impose exemplary damages subject to the protective supervision of the court to prevent abuse by setting aside the verdict.
But it was further argued before us that, while a railroad corporation is by statute liable for “a wilful violation” of the regulations of the railroad commission, it is not lia*576ble for “a wilful and wanton violation, of statutory regulations.” And, hence, when a train with several vacant seats passes its regular station without taking on a passenger waiting there, the liability is only because of the indignity offered the intending passenger. But it will be noted that this is a mere substitution of words. The sole indignity offered him is the wilful and wanton disregard of his rights as guaranteed by the statute (Code, Section 1963) that “sufficient accommodation for transportation shall be afforded at the usual stopping places” and the same indignity is equally offered him by the violation of the same statute if the company knows in reasonable time that the number of cars are -insufficient and can supply them and fails to do so, running by without stopping though with crowded cars because it chose not to supply enough. The duty to furnish sufficient cars is clearly stated in Branch v. Railroad, 77 N. C., 347, independently of the express requirement of the statute, Code, Section 1963 — above quoted.
In the present case the learned judge charged the jury, in accordance with the ruling of this Court, that if the defendant was guilty of wilful and gross negligence the plaintiff could recover, otherwise not, and further that, if the accident occurred, which they could not have, in the ordinary course of their business, foreseen and provided for, this would not be wilful negligence, but “if the character of the negligence was such as to satisfy the jury that the defendant did not care or was indifferent as to whether they had the train there (to bring the passengers home) it would be wilful negligence. ” It was in evidence that when the plaintiff, who held a return ticket, applied for transportation, the official in charge gave himself no concern whatever, made no effort to have the plaintiff brought home, and refused the use of the hand-car. His Honor, *577after stating correctly and more fully what facts would constitute wilful negligence and what would not, instructed the jury that only in the event they found wilful negligence could the plaintiff recover. There was ample evidence to submit to the jury "the inquiry whether or not there was wilful negligence. Both authority and reason sustain the proposition that “ the liability of a railroad company for exemplary damages cannot be made to depend on the ability of the corporation to earn enough money to keep its road in such condition as to be operated with safety.” Railroad v. Johnson, 75 Texas, 158, 162; Taylor v. Railroad, 48 N. H., 304, 317. If the company is unwilling or unable to furnish money to ran its trains according to the statutory requirement it should cease to hold itself out to the public as a common carrier.
The jury having found that there was a wilful violation by the defendant of its statutory duty to transport the plaintiff and a wanton disregard of the plaintiff’s rights in that respect, it is not the province of this appellate court to review the facts and disturb the verdict.
The principle involved is one of universal interest. It is nothing less, when reduced to its last analysis, than whether these corporations primarily created for the convenience and advantage of the public with the incidental benefit of profit to their owners are subject to exemplary damages when they wilfully and wantonly violate the statutes passed for their regulation by the power which created them. If they are not, then clearly and unmistakably the public are in the power and at the mercy of the arbitrary will of corporations which daily aggregating into larger and larger masses are powerful beyond any control other than the law. And if they possess the power of violating wilfully and wantonly the statutory regulations prescribed for the protection of the public, without fear of *578punishment by the imposition of exemplary damages at the hands of a jury, then the law-making power in creating them is like the magician in the Eastern story evoking a spirit which mastered and destroyed him. The rights of the people are too much at stake in maintaining the principle that railroad corporations are liable to exemplary damages for the “ wilful violation ” of statutes passed for their regulation, equally with similar violations of the regulations of the railroad commission, for any . denial or limitation of such principles to pass unnoticed.