(after stating the facts). We are of opinion the defendant was entitled to the instructions asked, upon the question *323of damages, and there was error in the refusal of the Court to ¿ive the instructions, and also in instructions given upon that point.
Conceding that the jury were warranted in giving the plaintiff •some damages, which we do not decide, but the amount of damages assessed by them was in such disproportion to the actual ■damage, if any was sustained by the plaintiff, that it is evident "that the damages were intended to be, and were, punitive or exemplary in their character.
We do not think this was a case for exemplary damages.
Punitive damages are never awarded, except in cases “when there is an element either of fraud, malice, such a degree of negligence as indicates'a reckless indifference to consequences, oppression, insult, rudeness, caprice, wilfulness, or other causes of aggravation in the act or omission causing the injury.” Thompson on Carriers of Passengers, 575; and to the same effect is ■Southerland on Damages, vol. 3, p. 270. According to the testimony of the plaintiff himself, there was no rudeness or unnec•essary force, used by the conductor, in requiring him to leave the ladies car. His testimony on that point was, that the conductor, after the other gentlemen who had seats in the ladies car had gone into the other car as directed, he was allowed to remain ■until he drank a cup of coffee, the conductor came to him and placed his hand on his shoulder, firmly but gently, and forced him to move into the other car; that the conductor was a powerful man physically, and greatly his superior in strength, and he knew him personally, and they were on friendly terms. Where was •the rudeness or unnecessary force? The statement that the conductor laid his hand gently upon his shoulder, excludes the idea of -rudeness or force. Gently means softly, mildly; and rude means rough, insulting, — Webster’s Dictionary. There was no rough act or insulting words used by the conductor, and there was consequently no rudeness nor unnecessary force, because there was no force at all employed. His Honor therefore erred in telling the jury, “if the conductor used improper force or rudeness on *324the occasion, the plaintiff might be entitled to puuitive damages;” and again, “if you are satisfied that the conductor treated the plaintiff with rudeness, or used unnecessary force in putting him out of the car reserved for ladies, you will take that into consideration in estimating the damages.”
He should have instructed them that there was no evidence-either of rudeness of unnecessary force, or at least no such evidence of either, as would warrant them in assessing exemplary-damages against the defendant, and if he was entitled to recover any thing, it was only compensative damages, that is, such as-were commensurate ’with the injury they might find, from the-evidence, the plaintiff had sustained.
But, aside- from the testimony of the plaintiff, which was on-many points flatly contradicted by other witnesses, it was shown in evidence that there was no force whatever used on the occasion. Captain Everett, supported by the testimony of the porter,, testified that he did not touch the plaintiff, and when the plaintiff told him that he was a gentleman of delicate organization, which was very sensitive to the odor of tobacco, or words to that effect, he told the plaintiff ,if he objected to going on that ground, he might- remain in the ladies car, but the plaintiff declined to remain, preferring to subject his sensitive organization to the offensive odor of tobacco, rather than forego the chance of making some money out of the Railroad Company, by making them,as he threatened, “suffer for that night’s work.”' Taking this evidence into consideration, it is very clear the plaintiff, if entitled to anything, was certainly not entitled to more than compensatory damages, and his Honor should so have charged the jury.
In a case very like this in Ohio, when a passenger was ejected from a Railroad car, and sued for damages, and it appeared that, the rate of fare fixed by the company, was higher than that allowed by law ; that the plaintiff tendered the legal rate; that upon his refusal to pay more, he was ejected from the cars, but without rudeness or unnecessary violence ; that at the time he took *325passage, the plaintiff knew the rate established by the company, ■and expected to be ejected from the cars, intending to bring an action for such ejection in order to test the right of the company to charge the established rate: Upon these facts, the plaintiff was held to be entitled to compensatory damages, and the company was permitted, for the purpose of mitigating the damages, to give in evidence subsequent declarations of the plaintiff, tending to prove that his object in taking passage on the cars, was to make money by bringing suit against the company for demanding more than the statutory rate of fare. Cincinnati R. R. Co. v. Cole, 29 Ohio St., 120.
In that case, the conductor had no right to eject the passenger, and it was held, the plaintiff was only entitled to compensatory damages, but that case is distinguished in some respects from this, for here it was very questionable, upon a view of all the testimony adduced, whether the plaintiff was entitled to any damages, but the jury found that fact against the defendant, and assessed exemplary damages, under what we think was an erroneous charge of the Court, and the plaintiff is therefore entitled to a venire de novo. Let this therefore be certified to the Superior Court of Mecklenburg, that a venire de novo may be awarded.
Error. Reversed.