#### L. L. BLEVINS v. NORFOLK AND WESTERN RAILWAY COMPANY.

(Filed 8 November, 1922.)

Appeal and Error — Unanswered Questions — Presumptions—Evidence.

Upon the exception to the exclusion of an answer by the witness of a question, it must be made properly to appear what the expected answer would have been, to be considered on appeal, so that its materiality may appear of record, under the rule that prejudicial error will not be presumed, but must affirmatively be established by the appellant.

Appeal by plaintiff from Finley, Jat July Term, 1922, of Ashe.

*325Civil action to recover damages for tbe loss of plaintiff’s cow, alleged to bave been killed by tbe negligent operation of defendant’s train.

From a judgment in favor of defendant, tbe plaintiff appealed.

Charles B. Spicer for plaintiff.

T. C. Bowie for defendant.

Stacy, J.

Plaintiff’s cow was killed by defendant’s train on 2 December, 1920. It was tbe contention of tbe defendant tbat tbe billing was accidental, and tbat tbe train could not bave been stopped in time to bave prevented tbe injury. In reply to this, tbe plaintiff, as a witness in bis own bebalf, offered to testify witbin wbat distance tbe train— admittedly running from ten to fifteen miles an bour — could bave been stopped at tbat particular place. He stated tbat be was familiar with tbe track; tbat be bad often observed trains passing up and down tbe line; tbat there was a cut and a curve at tbe place where tbe cow was killed; and tbat be bad seen trains stop right near this particular point. There was also testimony to tbe effect tbat tbe engineer could bave seen tbe cow for a distance of four hundred feet. Upon objection, tbe witness was not allowed to answer, or to give bis proposed evidence. This ruling may bave been erroneous (Hanford v. R. R., 167 N. C., 277); but its materiality does not appear, as there is nothing on tbe record to show wbat tbe answer would bave been. Armfield v. R. R., 162 N. C., 24. Prejudicial error will not be presumed; it must be affirmatively established. In re Boss, 182 N. C., 478.

No error.