concurring, in part: I differ from tbe Court in its decision on tbe question of damages, and am of tbe opinion tbat no error appears affecting tbe determination of either of tbe issues submitted, and tbat tbe judgment on tbe verdict should be affirmed as rendered.
Tbe evidence of plaintiff tends to show tbat be was driving in a buggy along a public highway which ran parallel to defendant’s tramroad at a point where there was thirty feet space between tbe railroad and a fence, which also ran parallel to both roads, and where he was not able to get out of the way with the vehicle after seeing defendant’s engine and cars approaching; that plaintiff’s sister and niece were just behind him, in another buggy, and when the train came in sight they all got out, and plaintiff led the horse drawing the rear buggy up by his own, and was holding both animals at their heads; that when the engine and cars came within seventy-five yards of plaintiff, and where he was in full view, the engineer, or an employee on the engine, commenced blowing short, sharp, piercing blows with the engine whistle, and the hands commenced to halloo and cry out at plaintiff, and continued this conduct until the train was seventy-five yards beyond plaintiff, causing his horses to take fright and, by their action, do him severe bodily injuries.
The plaintiff charges that this conduct was done unnecessarily and wantonly and with intent to frighten the horses, and that, in consequence of the shrieks and piercing sounds from the engine, and the shouts, yells, etc., of the crew, the horses did become badly frightened, demoralized and unmanageable, causing the serious injuries, as stated.
The sister and niece of plaintiff gave substantially the same testimony. There was also evidence to the effect that Troy Monds, the engineer, was heard to say that he blew the whistle “to see the horses jump about.” There was evidence on the part of defendant denying these allegations and affirming that the whistle was only sounded as required by the rules of the *74company as the train approached a crossing at or near this place, and that no whistle was blown to frighten anyone’s stock.
The issues submitted were as follows:
“1. Did defendant’s engineer, fireman or servants unlawfully and wantonly halloo, make noises and sound the whistle of the engine for the purpose of frightening the horses of the plaintiff, and was the plaintiff injured thereby ?” Answer: “Yes.”
“2. What damage, if any, is plaintiff entitled to recover ?” Answer: “One thousand dollars.”
Under the charge the jury answered the first issue “Yes” and the second issue “One thousand dollars.”
It is assigned for error in the determination of the first issue: “That, on the facts presented, the Judge below should have held that the defendant was not liable.”
These facts tend to show that plaintiff was on the public highway, where he had a right to be, and doing all he could to shield himself, and has suffered a grievous injury from the employees of defendant company while operating its engine and train in the course of the company’s business; and if the position of defendant can he maintained, plaintiff is left without any means of substantial, redress, for we know that, as a rule, the employees individually are not pecuniarily responsible. A decision which works this untoward result calls for most careful scrutiny, and, to my mind, is based neither upon right reason nor well-considered authority. As I understand it, the contention proceeds upon the theory (1) that, by his allegation and testimony, the plaintiff is confined to a recovery for a willful and malicious tort; (2) that, on the entire evidence, no case for such a recovery is made out. I do not think that either position should prevail. Treating them in reverse order, there is no need to combat the proposition urged upon our attention with such fullness of learning, that to hold a corporation .or other employer responsible for the malicious *75torts of its agents or employees, tbe wrong must, as a general rule, be one committed by authority of tbe employer, either expressly conferred or fairly implied from tbe nature of tbe employment or tbe duties incident to it.
This was announced as correct doctrine by this Court in Sawyer’s case, 142 N. O., 1, but with this important and essential modification, “that the test suggested applies only when tbe question of fixing responsibility depends exclusively on tbe relationship of master and servant,” and does not apply when the wrong complained of is a violation of some duty which the master owes directly to the injured person. Nor is there any question made of the principle so well announced and sustained in Jaclcsorís case, 139 N. C., 347: “That authority for the wrong on the part of an employee will be implied and responsibility imputed when the wrong is done in the scope and course of the servant’s employment.’’ And further: “That a servant is acting in the course of his employment when he is engaged in that which he was employed to do, and is at the time about his master’s business. Lie is not acting in the course of his employment when he is engaged in some -pursuit of his own.” Mr. Jaggard, in his work on torts, suggests that the term “course of employment” is the better term in these cases, ás both most accurate and comprehensive.
It may be that, under the principles maintained in both of these cases, responsibility for the wrong could well be imputed here to the defendant company, because done in the course of its employment; for, as said in Tiffany on Agency, p. 270, quoted with approval in Jacksons case, supra, “A servant is acting in the course of his employment when he is engaged in that which he was employed to do, and is at the time about his master’s business. But he is not acting in the course of his employment if he is engaged in some pursuit of his own. Not every deviation from the strict execution of his duty is such an interruption of the course of employment as to suspend the *76master’s responsibility, but if there is a total departure from tbe course of tbe master’s business tbe master is no longer responsible for tbe servant’s conduct.
But there is an additional principle present in tbe case we are now considering, which is, to my mind, controlling, and which the argument on the part of the defendant seems to entirely ignore, and that is, when the master or employer owns and operates in his business dangerous instrumentalities, and authorizes their use in places where harm to others is likely to arise, unless a very high degree of care is shown, the employer in such case must be held to responsibility for injuries wrongfully caused by such agencies while engaged in his work, whether the injury was brought about by the negligent or intentional misconduct of his employees. Whether this occasion for responsibility should be referred to a breach of an independent duty owing direct from the owner to the injured party, being the limitation on the general doctrine we are considering, suggested in Sawyer’s case, swpra, or whether it arises because, the danger being great, public policy requires that the corporation and employer shall be held to insure this careful handling, so far as the general public is concerned— which seems to me only a different way of stating the same doctrine — the principle is Avell grounded in reason and is fully sustained by authority.
It is stated by Mr. laggard, in his work on torts, as follows:
“Sec. 86. The master is liable for the conduct of his servant, within the course of his employment, not only (a) where responsibility would attach under the test of scope of his employment, but also (b) where the conduct is not intended to be for the master’s benefit, but for the servant’s malicious, capricious or other private purpose, and (c) whenever a duty rests on the master to avoid doing harm to the third persons and the servant violates that duty in the course of his employment.
*77“Sec. 81. Tbe duty owed by the master to third persons may arise from contractual or conventional relationship of the master to the person seeking to charge him for his servant’s wrong, especially where the master’s premises, instrumentalities and facilities of business made the harm possible, or where the master will be held estopped to deny liability.
“Sec. 88. The master’s duty to third persons may arise from ownership or custody of dangerous things, and it may extend to (a.) the conduct of the servant, though forbidden, and for the servant’s private purpose and not for the master’s benefit.”
Pursuing this last statement, the author says: “When the master owns, uses or controls such instrumentalities, he' is bound to perform that duty, and he cannot escape it by the exercise of care in the selection of his servants. Therefore, the master was held liable for the forbidden act of his employees, who frightened horses by blowing steam from an engine of which they had full charge.” And the statement of the doctrine is supported by a large number of well-considered decisions in this and other jurisdictions. Railway v. Scovell, 62 Fed., 730; Railway v. Harrison, 47 Ill., 298; Railway v. Dickson, 63 Ill., 151; Ackridge v. Railway, 90 Ga., 232; Railway v. Triplett, 54 Ark., 289; Bittle v. Camden, 55 N. J. Law, 615; Cobb v. Railway, 37 S. C., 194; Railwoay v. Starnes, 56 Tenn., 52. And recovery on this principle has been sustained in direct decisions of our own Court, in Everett’s case, 121 N. C., 519; Brendle’s case, 125 N. C., 474; Foot’s case, 142 N. C., 52. This last case is in all of its essential features like the one before us, except in that case the implement was a hand car operated on the defendant’s road — -a difference which makes in favor of the present recovery, if any weight is to be attached to it.
In Foot’s case the evidence is not set out in full, but an examination of the record shows that the plaintiff was in a buggy, driving on a highway, and was injured by loud cries *78and noises made by defendant’s employees while operating a hand car of the company, and done with the intent to frighten the horses. A recovery was sustained.
In BUtle’s case, supra, cited in 9 Am. Oorp. and Ny. Oases, 472, because, no doubt, considered especially instructive, the plaintiff had been nonsuited by the lower Court and the npn-suit was set aside and a venire de novo awarded, and the case is very similar to the one we are considering. There the plaintiff was-holding his horse on a highway which ran parallel to defendant’s road, and the horse was frightened by blowing the whistle of the engine. It was claimed by plaintiff that this blowing was an unnecessary, wrongful and willful act on the part of the engineer. The evidence on the part of the plaintiff as to blowing the whistle was as follows: “I did not think of him blowing the whistle there, because he was just beyond the crossing when he blew the whistle, and he was looking, with his head out of the cab window, and saw me, and he was smiling, and he just reached up and pulled the whistle, as I call it, wide open, and the instant he did that the horse jumped. As soon as he saw me he reached right up and pulled the whistle.” The witness never heard a shriller whistle in his life; it was a great deal louder than usual, and was so blown for 200 yards; that it did not blow until it was beyond the crossing, opposite the point where the plaintiff was, with a horse and wagon, and the whistle has never been since blown at that point; and at the time it was so blown in this manner there was nothing on the track ahead to provoke such a whistle. It was held that, on the plaintiff’s claim, he had a cause of action to be presented to a jury, and in laying down the principle the Court said: “The rule obtains generally that a master is not responsible in damages for the -wanton and malicious acts of his servant, yet this immunity is not generally extended to railroad corporations, whose servants are entrusted with such extensive means to do mischief. Accordingly, it has been established that, if such servants, while in *79charge of the company’s engines and. machinery and engaged about its business, negligently, wantonly and willfully perverted such agencies, the company was responsible in damages ; and this is the principle deducible from the authorities upon this subject.”
In Railway v. Dickson, supra, it is held that, “Where the servants of a railway company, while in the discharge of their duties, pervert the appliances of the company to wanton and malicious purposes, to the injury of others, the company is liable for such injuries.”
In Railway v. Harrison, supra, the Court, in upholding the principle, not inaptly said: “The life and property of individuals cannot be lightly or wantonly placed in jeopardy. If that might be done, then these great instruments of prosperity and agents in the development of the resources of the country and promoters of its commerce, instead of a blessing, would become a nuisance, if not a curse, to our citizens. If the lives of men and their property must be endangered in the pursuit of their ordinary and legitimate business while lawfully passing over our public highways, and no person can be held responsible, then it has become an injury instead of a blessing that they were constructed.” Again, “The appellee had the undoubted right to travel this public highway, and the appellants had no right, by their agents, to unnecessarily hinder him or his property while thus exercising his right. Both parties have the right to pass and repass over the roads in the modes adapted to their construction, and each is under equal and reciprocal obligation to observe the rights of the other; and neither can willfully, wantonly or negligently endanger, obstruct or delay the other in the enjoyment of his rights, without incurring liability for the injury, and each party, in the exercise of his rights, must observe the highest degree of prudence, circumspection and skill to avoid the infliction of injury.” And further, “It can make no difference whether the escape of steam was negligently permitted or willfully *80done by the .engineer, any more than if he had willfully run his engine against the appellee's wagon and team and thus produced the injury. The question whether it was negligently or intentionally done can, we think, malee no difference in the result.”
These authorities, and the principle on which they rest, are, in my ojdnion, decisive of the question, and show that, on the facts disclosed, the defendant is responsible for the misconduct of its employees while operating the engine, whether the demand be asserted as for a malicious or negligent tort. And it is in ignoring this important and wholesome principle of imputed authority that the error of defendant’s position consists (6). It is in this respect entirely unlike the case of an owner sending his wagon to town by a driver, as suggested in (7); and the further suggestion that the engine whistle is no part of its necessary or operating machinery is not a pertinent or permissible view of the question. The engine may be dangerous to persons on the train by reason of its operating machinery, but to- persons on the highway the engine and its sounds are the chiefest elements of danger. The whistle is put on the engine for the purpose of warning, and is desirable chiefly by reason of the startling sounds it may make; and, where the injury has occurred to one on a highway, to suggest that the whistle is no part of the structural or operating part of the engine’s machinery, and to make deductions from it prejudicial to the plaintiff, is to assume out of the case the controlling and certainly the most important element.
In nearly every authority cited and relied upon as upholding a contrary view — certainly (8) in those I have examined — it will be found either that the implement used was not one that essentially imported danger to outsiders, or the act complained of was not done while operating or using the instruments in the course of the employee’s business. Thus, in Smith v. Railway, 73 Hun., 524, the “torpedo case,” the *81agent was acting entirely outside of the course of employment ; and so in similar cases suggested and relied on by counsel, as if an engineer should shoot another from the cab, or intentionally strike another with a piece of coal or wood. None of these acts are within the course of employment. They could be likened to the case of Roberts v. Railroad, 143 N. C., 176, where two employees had'a fight, and it was held that the mere fact that the fight occurred while they were both on duty did not import responsibility of their common employer for injury inflicted by one upon the other. And, in Evers v. Krouse, 70 N. J. Law, 653, the hose used by the little boy did not import an injury threatened or reasonably contemplated to one who was going along the street, and the father was, therefore, excused.
Of the cases cited by the Court, which I have examined, the only one which tends to uphold the decision upon the facts of the present case is that of Stevenson v. Pacific Railway, from California. This case may possibly be distinguished on the ground of the defense suggested, that the engineer was not at the time running the engine for the company, but intentionally moved it for the purpose of frightening the passengers, and so did not do the wrong while operating the engine in the course of defendant’s service. The case is published in 15 L. R. A., 475, with the comment by the editor that it possibly ignores the principle of responsibility in the use of a dangerous agency, and, to the extent that it does this, I think the ease is clearly against the almost uniform current of authority.
I have thus far endeavored to show that the defendant company, on the facts of this case, is responsible for the wrongs of its employees, whether redress is sought for a malicious or a negligent tort. But I think the other proposition asserted in behalf of defendant is equally untenable — that, on the facts and testimony, the plaintiff is confined to recovery as for a malicious or willful tort — predicating such a position on some former decision of this Court (12 N. 0., 185), in which it *82was held that, for an injury wrongfully caused by beating- a drum and thereby causing a plaintiff’s horse to run away, the action should be in trespass and not in case — this last being the technical term for actions of negligence.
The position seems to admit that recovery could be had if redress had been sought for negligence, but holds that relief should be denied because of the allegation and evidence to the effect that the noises were willfully and wantonly made. It would roll back our procedure to perplexing subtleties of a bygone time to deny relief on any such ground as this. Judge Gaston, in speaking of these actions — trespass and case — in Dodson v. Mock, 20 N. C., 282, said: “The distinction between injuries which are the proper subject of an action of trespass and those which are to be redressed by an action on the case, between injuries immediate and those which are consequential, is sometimes very subtle and attenuated.” It was largely on account of just such distinctions that our Legislature felt called on to interfere and establish our present beneficent method of procedure. The change had for its basic principle an abolition of these very distinctions. In section 354 of the Revisal it is said: “The distinction between actions at law and suits in equity and the form of all such actions and suits are abolished, and there shall hereafter be but one form of action for the enforcement or protection of private rights and the redress of private wrongs.” Carrying out the idea in section 467: “The complaint shall contain a plain and concise statement of the facts constituting a cause of action.” Construing this legislation, the Court has, by numerous and well-considered decisions, established that the plaintiff now recovers on facts, and is entitled to any relief to which the facts alleged and proved show him to be entitled. Hendon v. Railroad, 127 N. C., 111. And if these facts which are fully set out show that the plaintiff is entitled to recovery for a negligent wrong, he should not be barred of relief because he has gone farther than the case required and stated his cause as for a willful injury.'
*83It is urged, however, that plaintiff cannot maintain this last position because the issue shows that the cause has been determined on the theory of a willful wrong, and that if only recovery for negligence is allowable, the verdict should be set aside.
There is doubt if the allegation and issue make out more than a claim for a negligent Avrong. It is not stated or found that the employees of defendant intended to harm or injure the plaintiff, but that they intended to frighten the horses, whereby the damage Avas caused. As we have held, in Foot v. Railroad, sufra, it is only where the injury was willful that the idea of negligence is necessarily eliminated. Negligence is there defined to be a breach of duty, causing unintended damage. “The breach of duty can be willful and the action can still be maintained for negligence if the harm was not intended.” The allegation, evidence and issue establish that the breach of duty was intentional, but not the injury done. But, assuming that the recovery was had for a willful wrong, AAdren it should have been for negligence, the results of the trial should not be disturbed unless this difference has wrought in some way to the defendant’s prejudice. Cherry v. Canal Co., 140 N. C., 422, Avhere it is said, quoting from Ashe, J., in Buits v. Screws: “A new trial will not be granted when the action of the trial Judge could by no probability injure the appellant.” In this aspect of the case it is urged that no issue of contributory negligence was submitted, and that this defense would have been open to the defendant in an action for negligence. There was, however, no evidence tending to show contributory negligence. All of the witnesses on both sides seem to have been examined, and, in the entire absence of any evidence tending to sustain it, the error in declining to submit an issue as to contributory negligence was harmless.
Again, it is submitted that the jury were allowed to give punitive or exemplary damages. But the jury have found that the wrongful act of the defendant’s employees was unlaw*84ful and wanton and done for tlie purpose of frightening the plaintiff’s horses, whereby the injury was caused. While there are some decisions to the contrary, the great weight of authority is to the effect that in such case a corporation may be held responsible in exemplary damages for the torts of its agents under such circumstances, whether the demand be asserted for a malicious or a negligent wrong. Hale on Damages, 218; Joyce on Damages, sec. 139; Sutherland on Damages, sec. 410; Sedgwick on Damages, sec. 380; Railway v. Steem, 42 Ark., 321; Illinois Co. v. Seed, 115 Ala., 670; Goddard v. Railway, 57 Me., 202; Hanson v. Railroad, 62 Me., 84; Baltimore v. Blocker, 27 Md., 277; Traction Co. v. Orban, 119 Pa., 37. In our State the doctrine is firmly established. Hutchison v. Railway, 140 N. C., 123, and numerous decisions of this Court to same effect could be cited.
In Sedgwick, supra, it is said: “I find it is held in many, perhaps most, jurisdictions that a corporation is liable to exemplary damages, if to any, for an act of its servant which would subject the servant to exemplary damages.” In ITale, supra, quoting from decisions of high authority, it is said: “It is usually held that corporations are liable for exemplary damages for the acts of their agents or servants in cases where the agent or servant would be liable for such damages. This is placed on the ground that otherwise corporations would never be liable for exemplary damages, since they can act only by agents or servants.” If this is the correct principle, then punitive damage could be awarded, whether the action be considered one for a malicious or negligent tort.
There was, therefore, no. harm done to the defendant in trying the cause on the issue submitted, and I am of opinion that the verdict and judgment should not be disturbed.
The facts show that the plaintiff, on the public highway, where he had a right to be, and doing all he could to save himself, has been subjected to an ou.trageous wrong, causing serious bodily injuries, by the misconduct of the defendant’s em*85ployees operating an engine in tbe defendant’s service on its tramroad; and, when called on to answer, the defendant’s reply is: “Yes; I sent out the engine, an instrument essentially dangerous and not unlikely to frighten your horses, and my employees, by their misconduct in operating my engine, in the course of my employment, did you a grievous wrong, but I should not be held responsible, because, in sounding the whistle, my engineer was not then acting in the course of my business, but was only doing it for his own diversion and to see the horses jump.” „
But for the sanction given it by my brethren, for whose learning and ability I have the greatest respect, I should say that such an answer is not deserving of serious consideration, and that the plaintiff, on the allegations, evidence and the issues as they now stand, should be allowed to recover either for a negligent or a malicious tort; and the Judge below made a correct ruling in allowing the jury to award punitive as well as compensatory damages.