Appellee was injured while traveling on. appellant’s train, which was derailed, and seeks to recover damages, actual and exemplary.
Appellant admitted its liability for such actual damages as might be - proved, but contested its liability for exemplary damages.
The evidence tended strongly to show that appellee’s right arm was fractured and its connections injured, but there was some testimony tending to show that these injuries may have been received in a subsequent fall from a wagon.
The charge of the court clearly informed the jury that in estimating-*161damages they would take into consideration only such injuries as were caused by the derailment. This charge was such that no juror having ordinary intelligence could have misunderstood, and we are of opinion that the court did not err in refusing further instructions on that point.
The practical effect of giving the charge requested, drawn as it was, after the court bad given a proper charge, would have been to divert the mind of the jury from some of the issues of fact raised by the evidence, if not to induce the jury to believe that the court was of the opinion the evidence was not sufficient to show that the particular injury to which the charge referred was caused by the wreck.
There was evidence tending to show that while the track was not in good condition trains might be run on it at a low rate of speed with reasonable safety, and that the rules of the company required its employes not to run trains at a speed of more than twelve miles per hour.
There was also evidence tending to show that the train was moving at a rate of speed greater than allowed by the orders of appellant at the time of the accident, and that the wreck may have been caused by this.
Under this state of facts appellant asked the following instruction:
“ The court charges the jury that if they find from the evidence that the accident by which plaintiff sustained the injuries complained of was the result of the fast running of the train, and that the train was so run against the orders of defendant’s superior officers, and against regulations made in that respect by defendant, then in that event plaintiff will not be entitled to recover more than his actual damages in this suit.” This was refused.
A master is liable for actual damages for an injury resulting from the negligence of his servant in the course of his employment, even though the act be in direct violation of the master’s orders, but the same rule does not apply with reference to exemplary damages.
If appellant’s railway could be operated with safety at the rate of speed prescribed by it for the regulation of employes, then an injury resulting from a violation of such orders can not be attributed to the gross negligence of appellant, nor to its indifference or disregard for the safety of passengers.
Such gross negligence, indifference, or disregard for the safety of passengers must exist to render the master liable for exemplary damages, and the charge requested should have been given.
The third assignment of error is that “the court erred in refusing to allow defendant to prove by its witness T. B. Donahoe, that during the time the present owners of said road owned the same, to-wit, over three years last ¡aassed, there had been no dividend declared or paid to the defendant’s stockholders; that the earnings and receipts from the operation of the railroad were not sufficient to pay operating and other expenses and keep the road in repair, and that there was no money from the receipts *162of the road to make repairs and betterments, and furnish and place in position the necessary cross ties, and that the owners of the road'—of its stock—had to take out of their own pockets money to meet the deficits in the operating of defendant's road, and for the purpose of keeping it in repair, and in purchasing cross ties for the road; and that during all that time the stockholders of defendant's company had not received a dollar from the receipts and earnings from the operation of defendant’s road. Defendant offered to make this proof by said witness o"n the issue of exemplary damages claimed in plaintiff’s petition, and to show that the owners of the stock of said road had not appropriated said receipts or earnings, but on the objection of plaintiff the court held such evidence incompetent, and refused to allow defendant to make said proof by said witness."
The liability of a railway company for exemplary damages can not be made to depend on the ability of the corporation to keep its road in such condition that it can be operated with safety to passengers.
A corporation or individual who attempts to conduct a business public in its character, in the course of which the lives and limbs of persons dealing with them are imperiled, are held responsible in exemplary damages whenever the means used to conduct the business are so manifestly insufficient to enable them to conduct it safely as to manifest indifference to duty or reckless disregard for the safety of persons.
The legal culpability is as great when the failure in such cases to furnish safe appliances results from inability arising from the want of sufficient money or credit as is it when it arises not from a lack of means but from an indisposition to use them. The moral culpability may be greater in the one case than in the other, but the legal is the same whether it results from the one cause or the other.
There is no law which compels a railway corporation either to construct or operate a railway, though if this be voluntarily undertaken the failure to operate may give the State the right to withdraw the rights and powers given by the act of incorporation.
A railway must be presumed to be operated by the company owning it for its own benefit, and whether this consists in actual profit to stockholders or the mere avoidance of facts which would authorize the State to demand a forfeiture, is immaterial in so far as liability to persons for failure to use care may be in question.
If a railway company elects to pursue the business of passenger carrier with full knowledge that this is done without appliances reasonably sufficient when carefully used to enable it to safely transport them, it matters not on a question of liability for an injury what may be the cause or motive for such action.
If the company has not the means to place its roadway in safe condition it should cease to use it for the transportation of passengers; but if it elects *163not to do this, and lor any reason continues to hold itself out as a carrier ol passengers, and receives them when its appliances are known to be insufficient when carefully used for the safe conduct of such a business, then, so long as damages are given for the purpose for which it is said exemplary damages are given, it must be held that such damages may be properly imposed.
The law gives no guaranty to the stockholders of a railway or other corporation that its business shall yield dividends or funds sufficient to keep in repair the appliances with which its business is conducted, but holds them, as it does individuals when they conduct a business public in its character, liable for damages actual or exemplary as the degree of negligence shown may warrant under the rules of law applicable to the measure of damages.
The court did not err in excluding the evidence offered, but for its refusal to give the charge before referred to, its judgment must be reversed .and the cause remanded.
Reversed and remanded.
Delivered November 19, 1889.