made, such railroad would be excused for such failure. But suppose it arose from the careless indifference of the conductor or a malicious disregard of the passenger's right, would it be excusable? Certainly not. If the carrier can with safety discharge his passenger at the point of destination, such passenger has the right to such action; and if from any cause and in a reasonable distance from such station that has been passed without the passenger having been afforded an opportunity to alight at his destination, such omission is discovered, it is the duty of the carrier to return such passenger to that destination. It will not be excused because it is inconvenient or troublesome; it will only be excused upon the proof of some controlling exigency, and the burden of such proof is upon the carrier the moment the passenger proves that he had the right of passage to a certain point and a compliance on his part with ordinary care, and that such point of destination was passed by the carrier without giving the passenger an opportunity of getting off then. Such being our view of the law, and after applying it to the charge of the trial judge, we do not find that he has committed any error, and therefore these two grounds of appeal are dismissed.

The appellant urges as his third ground of appeal: "3. Because the presiding judge erred in charging the jury plaintiff's second request to charge, which was as follows: The rule in regard to damages is, that they should be such only as would compensate the plaintiff for such injuries as she had suffered; and if there was an expulsion, and same was unlawful, and the conductor's conduct was oppressive, malicious, reckless, and disregardful of the plaintiff's feelings, or insulting or unnecessarily rude and violent, the jury may go beyond the actual amount of damage done the plaintiff, and give such amount as they think she ought to have, not only to compensate her, but to punish the defendant for such conduct, but the amount should not be excessive.""

In our consideration of the first two grounds of appeal, we have laid down a definition of exemplary damages. We did not state the authorities for such declaration. Briefly, it may may be stated as the result of judicial interpretation of this class of torts, that the damages awarded against the defend. ant are intended to compensate the plaintiff for the wrong done him, and at the same time as a punishment for the tort feasor. This view prevails in this and the mother country It applies to natural persons and to artificial persons. It not

only reaches to the master, but also to his servants. Such damages apply to any malicious, violent, oppressive, wanton, or inconsiderate or reckless disregard of the social or civil obligations shown by one person with the rights of another. One of the latest expressions of our own court of last resort in this` state on this subject may be found in the judgment of this court delivered by Chief Justice McIver in the case of Duckett v. Pool, 34 S. C. 324, where he said: "In an action of tort, where the testimony satisfies the jury that the defendant has acted maliciously, willfully, or in wanton disregard of the rights of plaintiff, the jury may, in addition to such damages as will compensate plaintiff for any loss or injury he may have sustained in person, property, or feelings, award other damages, called, indifferently, 'exemplary,' 'vindictive,' or 'punitive,' by way of punishment to the defendant." In this case the chief justice has collated a large number of our own decisions on this subject, amongst others, Palmer v. Charlotte etc. R. R. Co., 3 S. C. 597; 16 Am. Rep. 750; Hall v. South Carolina R'y Co., 28 S. C. 263; Quinn v. South Carolina R'y Co., 29 S. C. 386. Care should be taken to observe the meaning attached to the terms "malicious," "wanton," in connection with this offense, for both the text-writers and judges, in their decisions, attach a significance to them over and beyond their primal meaning. In the light of these observations, we fail to detect error in this part of the judge's charge. This ground of appeal must be dismissed.

The fourth ground of appeal is presented in these words: "4. Because the presiding judge refused to charge the defendant's second request, which was as follows: 'We request your honor to charge the jury, that while they are the sole judges of the effect of the proof, it is the province of the court to say whether there is or is not proof going to establish every issuable fact in this case, and that in this case there is no proof to show willfulness or oppressiveness or cruelty on the part of the conductor, without which the jury can only find a verdict for actual damages sustained by the plaintiff, and that in the absence of such proof a verdict for punitive or exemplary damages cannot be sustained.'" By reference to the "case," we find the trial judge used this language: "I cannot so charge you, not in the language of that request."

It will be conceded that a party making a request has to be careful not to mingle the doubtful or bad with the certain and good; for if the judge cannot charge it as a whole, and the re

quest is faulty, it is not error to refuse the request. We think the safer practice is for the trial judge to indicate what parts are objectionable and which he declines to charge, and give the party seeking the request the benefit of his charge upon what is good. Of course, this is upon the supposition that the request is so divisible. But we would not be understood as laying down any rule on the subject. It may be better to let attorneys, in their laudable efforts to attain the very best results of which their cases are capable, have this as an additional stimulus to an excellence that will surmount all obstacles. However, we will not take advantage of this seeming difficulty, for unquestionably the request was not broad enough to embody correctly the definition of the torts redressible by exemplary damages.

But there is a question presented by this exception that merits attention: we mean that part that seeks to fasten upon the trial judge the duty of passing upon the question whether there is or is not proof going to prove every issuable fact in this case. What the appellant seeks here is a ruling from the trial judge as to his duty in the first instance, before submit. ting the case to the jury, but to be submitted by him in his instructions to the jury, to decide whether, under the testimony in this case, there is made a case justifying exemplary damages. It is due to appellant here, that we should acknowledge that there are some expressions in that portion of the work of Mr. Thompson. on negligence devoted to a consideration of punitive damages, notably at page 1264, which seem to indicate that the trial judge should decide this question, and so state his conclusion to the jury. This is the language of that author: "Exemplary, punitive, vindictive, damages, or smart-money, as they are called indifferently, are given by way of punishment of the wrong committed by the defendant, and with a view of deterring others from like offenses. Whether or not the case is one that justifies exemplary damages, is a question for the court to determine in its instructions to the jury. In the discharge of this duty, the court looks to the animus of the defendant that accompanied the injury. If it was wantonly and willfully inflicted, or with such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness, the court will instruct the jury that they are at liberty to find for the plaintiff, in addition to a compensation for the injury actually sustained, such a sum as the circumstances justify."

While this court has already approved this declaration by the author, wherein he defines this class of torts, yet we have been unable to discover anything in this class of offenses that justifies any greater power in a trial judge in regard thereto than such as are legitimately exercised by him in any other cases. This court has repeatedly recognized it as the privilege and duty of a trial judge to determine, in the first instance, whether there is any evidence in a case going to establish the issuable facts, and if the learned author merely intends to state this conclusion, we heartily concur with him. But if it is intended to go further, and say that a trial judge must decide and announce to the jury that the testimony offered has established certain conclusions, thereby invading the province of the jury, we cannot concur; for such a view is not only at variance with repeated declarations of this court limiting the power of trial judges in deciding questions of fact in his charge to the jury, but also with the letter and spirit of the provisions of our state constitution relating to trial by jury. We are very glad of an opportunity, occurring as it does so soon after the decision of this court in the case of Spellman v. Richmond etc. R. R. Co., 35 S. C. 475, ante, p. 858, where this very quotation from Thompson on Negligence is made, to record this expression of our views touching the same, for, we may remark, in the hurry incident to the preparation of the opinion of the court in that last-mentioned case, we failed to state our restricted approval of the same. This ground of appeal must be dismissed.

Appellant's fifth ground of appeal is: "Because the presiding judge erred in refusing to charge the jury the defendant's fourth request, which was as follows: 'If the testimony satisfies you that the defendant was at fault, the compensation to the plaintiff must be limited to the inconvenience, loss of time, and labor of traveling back from the point where she left the train.' By this request to charge, it seems to us that the defendant sought to restrict the consideration of the jury to only a portion of law relating to exemplary damages. We think the trial judge very wisely so considered the request. Having stated already in this opinion at length the law intended to apply to this class of torts, we will not repeat it here, except to state that this request was not broad enough. This ground of appeal must be dismissed.

Lastly, the sixth ground of appeal will be considered; it reads: "Because the presiding judge erred in permitting the

question whether the plaintiff was entitled to exemplary damages to go to the jury, because there were no facts in the case to characterize the conduct of the conductor as malicious, oppressive, or reckless of the rights of the plaintiff, and submission of such a question to the jury tended to mislead them as to their duty in the case." As we before remarked, this was an action upon a tort sounding in exemplary damages, and not one for actual damages. The testimony offered was responsive to the allegations of the complaint. If there was a failure of plaintiff's testimony, a nonsuit was in order. This the trial judge could grant of his own motion, or upon a motion therefor by defendant. Certainly, the defendant did not so move. The trial judge evidently thought there was some testimony on the issues raised by the pleadings. Such being the case, he ought not to have granted a nonsuit. Without a nonsuit, it was imperative that the case should be submitted to the jury. Unfortunately for the defendant, they took a different view of the virtue of the testimony from that enter. tained by it. Their verdict was not large. This court seldom interferes with verdicts like this. This ground of appeal must be dismissed.

It is the judgment of this court that the judgment of the circuit court be affirmed.

EXEMPLARY DAMAGES, when recoverable and how pleaded, is discussed in Spellman v. Richmond etc. R. R. Co., 35 S. C. 475; ante, p. 858, and note. DAMAGES -EXEMPLARY, FOR FAILURE TO DELIver Passenger at PROPER DESTINATION. — Exemplary damages will not be allowed for failure to stop a train at a station, and give a passenger opportunity to alight, unless the failure to stop was willful, or the wrong was aggravated in some way by the conduct of the railroad employees: Dorrah v. Illinois Cent. R. R. Co., 65 Miss. 14; 7 Am. St. Rep. 629, and note.

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