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 *154 not 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.