#### J. T. BEDSOLE v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 20 October, 1909.)

1. Evidence — Demurrer — Ruling Reserved — Sustained — Instructions — Harmless Error.

It is not improper for tbe trial judge to reserve Ms ruling on tbe evidence upon matters set out in a certain section of tbe complaint and to sustain the demurrer when the evidence is all in if it appears that be should have done so. His instructions to the jury to exclude such evidence from their consideration would cure the error, if any committed therein.

2. Carriers of Passengers — Protection — Assault — Evidence — Res Gestse.

In an action to recover damages of a railroad company for injuries plaintiff received while a passenger on defendant’s excursion train by reason of defendant’s failure when notified to properly protect him from the assault of a fellow passenger, a man of dangerous character, pertinent evidence of what was said at the time of assault, by the one assaulting, to plaintiff and another passenger, is competent as a part of the res gestae.

3. Carriers of Passengers — Protection — Assault — Avoidance — Evidence, Corroborative.

In an action to recover damages of defendant railroad company for injuries received in an assault by another passenger, arising from defendant’s alleged negligence in failing or refusing to afford plaintiff proper protection, it • appeared that there was evidence that plaintiff went into a “reserved seat” car to avoid the difficulty, and the conductor was informed of the fact and refused the protection therein reguested. Held, it was competent for plaintiff to testify his reason for going into this car in corroboration of the witness who testified that he notified the conductor of the fact.

4. Carriers of Passengers — Measure of Damages — Instructions Distinctive.

A charge to the jury, upon the measure of damages, that the Xilaintiff is entitled to recover on account of injuries received in an assault made on him by another passenger, alleged to have arisen from defendant’s failure or refusal to afford him proper protection, on its passenger train, that the jury could include such physical pain and mental suffering as was the proximate, immediate and necessary consequence of the assault, is not prejudicial on the question of mental suffering claimed on account of plaintiff’s having been compelled to kill his assailant, when evidence on that point had been excluded and the jury instructed not to consider that phase of the case.

5. Pleadings — Variance—Amendments.

There is no error in the trial judge allowing amendments to the pleadings so as to make them conform to the proof. Revisal, 507.

*153Appeal from W. J. Adams, J., April Term, 1909, of Oumber-LAND.

Tbe facts are stated in tbe opinion of tbe Court.

H. McD. Robinson and Terry Lyon for plaintiff.

Rose & Rose for defendant.

Clark, C. J.

In 1906 tbe plaintiff and one Alexson were among tbe passengers on an excursion train, run over tbe defendant’s road from Stedman, in Cumberland County, to Wilming-' ton, N. 0. On tbe return trip tbe plaintiff, on account of Alex-son’s threats to do bim violence, secured a seat in tbe “reserved car” as a means of protecting bimself against any assault Alex-son might make upon bim. Tbe conductor of tbe excursion train was told of Alexson’s conduct and threats against tbe plaintiff ; that tbe plaintiff bad gone into tbe reserved car for protection, and that Alexson was a dangerous man, who b.ore a bad reputation in bis community. Notwithstanding tbe warning given to tbe conductor, Alexson was allowed to enter tbe reserved car, where plaintiff bad sought refuge, and, carrying out bis threats, with pistol in band, violently assaulted plaintiff, striking, kicking and abusing bim.

This action was instituted to recover damages for tbe failure of the defendant to protect plaintiff from tbe assault made upon bim by a fellow-passenger. Tbe liability of tbe railroad in such cases is fully discussed, with citation of authorities, in Brown v. Railroad, 2 L. R. A. (N. S.), 105, and notes.

Tbe plaintiff killed Alexson. Tbe complaint contained section 14, for mental suffering from tbe necessity imposed on plaintiff of slaying bis assailant.

Tbe first exception was for refusal of tbe court to sustain a demurrer ore, tenus to said section 14. At that time tbe evidence bad not been developed, and bis Honor properly reserved tbe point. Later on in tbe trial tbe judge sustained tbe demurrer, excluded all evidence on that point, told tbe jury not to consider it, and again so instructed them in bis charge. If there was error against tbe defendant, it was cured. Medlin v. Simpson, 144 N. C., 399. To same effect, Wilson v. Mfg. Co., 120 N. C., 95; State v. Ellsworth, 130 N. C., 690; Moore v. Palmer, 132 N. C., 976; State v. Holder, 133 N. C., 712; Briscoe v. Parker, 145 N. C., 14; Matthews v. Ins. Co., 147 N. C., 339; State v. Peterson, 149 N. C., 533.

In Briscoe v. Parker, supra, tbe court below told tbe jury not to- consider tbe excluded evidence, and we held that tbe jury must have understood so plain an instruction, and said: “If a jury is *154not possessed of tbis much intelligence, it is not a proper part of a trial court.” Whether the court did not err in sustaining the demurrer and in excluding the evidence is a matter not before us, as the plaintiff'did not appeal.

Exception 2 is for permitting plaintiff to testify why he went info the reserved car, and exceptions 3 and 4 are to proof of what-Alexson said to plaintiff and to a bystander when he made the assault. The latter was part of the res gestae and the former was in corroboration of the testimony of another witness, who had notified the conductor of Alexson’s threats and that plaintiff had taken refuge in the reserved car and asked the conductor to keep the door closed and guarded, which he refused to do. Exception 6 is abandoned.

Exceptions 5 and 7 are substantially to the same j>oint. The court told the jury: “If the plaintiff is entitled to recover any damages, he is entitled to recover compensation for such injury, past, present and prospective, suffered by the plaintiff in consequence of and by reason of the assault, including such physical pain and suffering and such mental "suffering as was the proximate, immediate and necessary consequence of the assault.” We do not think this is obnoxious to the defendant’s claim that it allowed damages for mental suffering from killing' Alexson. Besides, his Honor expressly told the jury not to allow any damages “for any mental suffering the plaintiff may have undergone by reason of or in consequence of his killing Alexson.”

The amendments allowed to the complaint to make it conform to the proof was in the discretion of the court. Revisal, sec. 507. The court read a part of-the complaint to the jury, explaining to them that he did so as stating the plaintiff’s contention. He also stated the defendant’s contention and charged correctly as to the burden of proof. We find

No error.