65 S.E. 925 | N.C. | 1909
In 1906 the plaintiff and one Alexson were among the passengers on an excursion train, run over the defendant's road from Stedman, in Cumberland County, to Wilmington, N.C. On the return trip the plaintiff, on account of Alexson's threats to do him violence, secured a seat in the "reserved car" as a means of protecting himself against any assault Alexson might make upon him. The conductor of the excursion train was told of Alexson's conduct and threats against the plaintiff; that the plaintiff had gone into the reserved car for protection, and that Alexson was a dangerous man, who bore a bad reputation in his community. Notwithstanding the warning given to the conductor, Alexson was allowed to enter the reserved car, where plaintiff had sought refuge, and, carrying out his threats, with pistol in hand, violently assaulted plaintiff, striking, kicking and abusing him.
This action was instituted to recover damages for the failure of the defendant to protect plaintiff from the assault made upon him by a fellow-passenger. The liability of the railroad in such cases is fully discussed, with citation of authorities, in Brown v. R. R., 2 L.R.A. (N.S.), 105, and notes.
The plaintiff killed Alexson. The complaint contained section 14, for mental suffering from the necessity imposed on plaintiff of slaying his assailant.
The first exception was for refusal of the court to sustain a demurrerore tenus to said section 14. At that time the evidence had not been developed, and his Honor properly reserved the point. Later on in the trial the judge sustained the demurrer, excluded all evidence on that point, told the jury not to consider it, and again so instructed them in his charge. If there was error against the defendant, it was cured. Medlin v. Simpson,
In Briscoe v. Parker, supra, the court below told the jury not to consider the excluded evidence, and we held that the jury must have understood so plain an instruction, and said: "If a jury is not (154) possessed of this much intelligence, it is not a proper part of a trial court." Whether the court did not err in sustaining the *151 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 into 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 point. 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.
Cited: Harrington v. Wadesboro,
