
    SEAWELL v. CAROLINA CENTRAL RAILROAD COMPANY.
    (Filed November 24, 1903.)
    
      EVIDENCE — Res Gestae — Gamers—Passengers—Assault.
    In an action against a carrier for failure to protect a passenger against an assault at a station, the evidence by a witness that he told the person assaulted immediately after the assault that an employee of the carrier took part in the assault is competent as part of the res gestae.
    
    Colmo» and Walker, JJ., concurring.
    A PbtitioN to Ejsheae, this case, reported in 132 N. C., 856.
    
      J. D. Sham, W. H. Day and Shepherd & Shepherd, for the petitioner.
    
      J. D. Melver, W. J. Adams, B. L. Bums, Douglass & Simms, G. W. McNeill, G. H. Humber and U. L. Spence, in opposition.
   Glare, C. T.

This is a petition to* .rehear our opinion in this case, 132 N. C., 856. The chief exception relied on is' the refusal of the Judge to non-suit the plaintiff, on the ground that there was no evidence. The plaintiff, who was a candidate for Lieutenant-Governor of this State, had gone in Ms canvass of the State to speak at a town where tbe party whose candidate he was was unpopular. He went bach to the railroad station to take the train, and while at the station, with a mileage ticket in his pocket, awaiting the arrival of the train, a mob came up and threw eggs at him, striking him with them in the face, on the head and other parts of his person, and at the same time using insulting, indecent and op-probious remarks. The defendant had three employees present, Ramsour, Carroll and Wells, and it is not contended that either of them gave the plaintiff the slightest protection or assistance, and it is further clear that even when the train arrived the conductor gave him, no protection, but evaded doing so by going back on the train and through the cars to reach the front end of the train to communicate with the local agent. There was evidence tending to show that not only no protection was afforded or attempted by any of the defendant’s employees, but that Carroll and Ramsour encouraged the assault, Carroll engaging with the mob (which had come out of the railroad office with Ramsour) in throwing eggs and joining in the cries of the mob, and Ramsour saying they “had not egged him half enough” after the first eggs were thrown.

The Constitution and laws of this State guarantee freedom of speech, and nothing could be more unmanly than a mob assailing one man in such manner for his difference from them in his political opinion. No right-thinking man, here or elsewhere, will express other opinion of the proceeding, and the most that can be said is that it was the act of a mob, for which the community was not responsible. The plaintiff was an invited guest of the defendant and on its premises, a passenger, wM>, at the invitation of the defendant, had bought a mileage ticket over its road and had gone to' the station to take its train. Tire defendant was a quasi public corporation, forbidden to make any discrimination in the discharge of its duties to tbe public other than as provided by the power from whom it holds its franchise, to exist and operate its road. It owed to the plaintiff the same protection and courteous treatment it owed to every other passenger. It could not extend this protection otherwise than through its agents and employees. Of the four employees present — Ramsonr, Carroll, Wells and the conductor — not one is shown to have made the slightest attempt to protect the plaintiff, and there is evidence that two' of them actively .participated in, or, at least, encouraged the assault.

A careful examination of all the authorities shows no case, and the appellants cite none, in which, under similar circumstances, the railroad company has not been held liable, unless it exerted what power it could to protect the passenger from the mob. Here, if the agent had taken the passenger into his private office, or offered to do so, had expostulated with the mob, and on the arrival of the train, in company with the conductor and his own employees escorted him to the train, the eggs would hardly have been thrown, and at any rate the defendant would not have incurred liability for this breach •of duty. Or there might have been other attempts to protect the passenger while on its premises, and which the jury might have held sufficient. But here there was none whatever. It was the assaulting mob, not the passenger, whom the agent admitted to his office, and he issued therefrom with the mob at his heels, who immediately began spattering the plaintiff with eggs and abuse. Such attempted intimidation for political opinion’s sake cannot be safely permitted, especially by great public corporations holding their franchises in trust, impartially, for all the public.

The oases are uniform, fastening liability upon a common carrier for failure to extend such protection, as it can, to a passenger against a mob. No one before has questioned that the corporation would be liable when its own agents actively encouraged or participated in the assault by the mob. The law has never been more clearly and accurately stated than by Mr. Justice Ruffin in Britton v. Railroad, 88 N. C., at p. 544; 43 Am. Rep., 149, where the plaintiff was a colored passenger. Siaid Judge Ruffin: “The carrier owes to> the passenger the duty of protecting him from the violence and assaults of his fellow-passengers, or intruders, and will be held responsible for his own or his servant’s neglect in this particular, when by the exercise of proper care the acts of violence might have been foreseen and prevented; and while not required to furnish a police sufficient to> overcome all force, when unexpectedly and suddenly offered, it is his duty to provide ready help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur under the circumstances of the case and the condition of the parties.” Eor this he cited several authorities. Many others to like purport, but later, were cited by us in our former opinion, 132 N. C., at p.. 859. Among the numerous additional cases are Railroad v. Jefferson, 89 Ga., 554; 17 L. R. A., 571; 32 Am. St. Rep., 87; Railroad v. Burke, 53 Miss., 200; 24 Am. Rep., 689; Spohn v. Railroad, 87 Mo., 74; Railroad v. Pillsbury, 123 Ill., 9; 5 Am. St. Rep., 545; Railroad v. Hinds, 53 Pa. St., 512; 91 Am. Dec., 224; Krantz v. Railroad, 12 Utah, 104; 30 L. R. A., 297; 1 Thompson Neg., sec. 968, and many other cases where the liability was for omission to make reasonable efforts to protect the passenger from assaults by other passengers or by a mob. There is not, and could not be, any authoxdty holding a common carrier irresponsible when its agents' participated in or encouraged the assault. The station and ears of a railroad are quasi public, where every one who pays his fare has a right to be, and if such corporations, permeating everywhere as they do, can, with impunity, through its employees, assault or permit assaults on its passengers for the political opinions entertained by them (as in this Case), or for any other reason, the result would be deplorable in the extreme.

Only one other point requires notice, and that only because it was pressed with great zeal on the argument. A witness (McBryde) having testified to evidence tending to show that he saw Oarroll, one of the defendant’s employees, throw an egg at the plaintiff, further stated, under objection, that he hollered and told the plaintiff, in the presence of the crowd, “just right afterwards.” On cross-examination McBryde said it was “a minute afterwards.” This was not excepted to-, nor was his statement thereupon, that he told Seawell that he saw the man throw the egg, excepted to. If it had been, the first statement of the time may, nevertheless, have been more correct. In such circumstances the passage of time cannot be very accurately measured. But had the evidence been duly excepted to, it was properly received, not only as corroborative evidence, but as substantive testimony, as a part of the res gestee. Harrill v. Railroad, 132 N. C., at p. 659; Bumgardner v. Railroad, Ibid., 438. The egg-throwing was not over, for McBryde said he told the plaintiff after Oarroll threw the first egg, that the plaintiff shook his cane at Oar-roll, and thereafter he saw Oarroll throw another egg; but if the egg-throwing had been over the abuse and insults were not, for even as the train rolled off, carrying the plaintiff, the crowd was jeering the plaintiff, the station agent and Wells and Oarroll were all laughing at his pitiful plight, and one of the crowd yelled after him, “Blit that suck-egg dog off at Buffalo and let him wash himself.” The statement of McBkyde to the plaintiff was made before the train had started to move, and he says Oarroll threw another egg at the plaintiff, just as it started. The exclamations of third parties present are as much a part of the res gestee as those of the parties themselves. State v. McCourry, 128 N. C., 598; Harrill v. Railroad, supra.

Even if the exception had been duly taken and the evidence bad been erroneously admitted, yet if it bad been rejected there was sufficient evidence to refuse tbe non-suit, which is tbe point now before us, in view of tbe fact that tbe defendant’s station agent admitted in bis testimony that no steps whatever were taken to give the plaintiff any protection, and tbe evidence tending to show that tbe railroad employees aided, abetted and encouraged, and even shared in tbe assault. Besides, from tbe other facts in evidence, and not denied, such error (if it bad been error) would have been too minute and immaterial to justify a new trial.

No court of justice can tolerate such conduct as that of tbe agents of tbe defendant towards tbe mob in its assault upon tbe plaintiff, while entitled to tbe protection of a passenger at its bands.

Petition dismissed.

CONNOR, J.,

concurring. I have carefully examined tbe record in this case, especially those portions referred to- in tbe petition to rehear. I do not understand that any denial is made of tbe principle upon which tbe defendant’s liability for a breach of duty to protect tbe plaintiff from injury or assault is made, or that it is denied that if tbe defendant’s agents participated therein- or failed to protect tbe plaintiff from such assault, if they could have reasonably apprehended or prevented' tbe same, is brought into question by tbe petition to rehear. The authorities cited in tbe opinion filed at last term amply sustain tbe conclusion reached by tbe Court, and I do not deem it necessary to review them or further discuss that phase of tbe case.

Tbe first assignment of error in tbe petition is a suggestion that “on pages 72 and 73 of the record tbe re-direct examination of Thomas McBryde discloses two exceptions, being numbers 4 and 5.” It was urged that bis declaration could not be considered as a part of the res. gestee. “It was a narrative of a past occurrence and could only bave been received for the purpose of corroboration; that the judge did not restrict it to that purpose, but left it to the jury without explanation.” The petitioner says these exceptions were overlooked by the Court. The record, in respect to this testimony, shows that the witness was being examined in regard to seeing a man raise his arm and motion in the direction of the plaintiff. The Court asked him if he said anything to plaintiff at the time he saw the motion made, to which witness responded: “Not at that time, but afterwards.” Counsel then asked: “How long afterwards?” Witness answered: “Just right afterwards.” Objected to by defendant; overruled. Defendant exeeptecL Q. “What did you tell Seawell when that motion was made?” Defendant’s counsel interposed the question: “How long afterwards — how many minutes?” Ans. “It was a minute.” Plaintiff’s counsel then asked: “What did you say ?” Witness answered: “I told Mr. Sea-well that that man with the red head threw an egg at him, for I saw him do it.” Counsel asked: “Had Seawell made an assault on him?” Ans. “No, sir.” Defendant objected to this evidence; overruled. Exception. It appears that this witness had sworn on his direct examination that he was the news-boy on the train; that he saw but one egg thrown; that it was by Paul Carroll, “a red-headed fellow.” That witness was standing on the platform. It seems that in consequence of what witness said, plaintiff went to Carroll, drew his cane and asked him if he threw the egg. Carroll denied it. After the first egg was thrown, two others were thrown. About two and three-fourths minutes elapsed between the throwing of the first and the last egg. It is very difficult, unless the entire testimony is set out, to describe the transaction as it occurred. It will be well to keep in mind that all the eggs were thrown while the cars were standing at the depot, about three minutes. It is very doubtful whether, under the rules prescribed by the Court for noting exceptions, the record presents any exception to the portion of the testimony to wbicb the assignment of error is pointed. However this may be, I think the declaration of McBryde was competent as a part of the res gestee. He testified that it was made a minute after1 Carroll threw the first egg and before the transaction was concluded. It is difficult to fix the precise time within which a declaration must be made to1 entitle it to be admitted as a part of the res gestee. We do not find that the courts or text-writers have undertaken to do- so. The principle under which such testimony is admitted as an exception to the general rule rejecting hearsay evidence is discussed and the authorities reviewed by Mr. Justice Montgomery in Bumgardner v. Railroad, 132 N. C., 438. See also Harrill v. Railroad, 132 N. C., 655. In State v. McCourry, 128 N. C., 594, the Court, speaking through Mr. Justice Clark, quotes with approval the following language from 1 McLain Cr. Law, sec. 411: “Evidence of the entire transaction is admissible, and of the surroundings.” “Declarations and exclamations made by by-standers have been held admissible as a part, of the transaction.” Ibid., sec. 411. Mr. Underhill, in his work on Criminal Evidence, secs. 96 and 97, says: “Oh the whole, the res gestae cannot be arbitrarily confined within any limits of time. The element of time is not always material. If the declarations are narrative and descriptive in their form and character, if they are not the impromptu outpourings of the mind, they should be rejected, though uttered only a few minutes after the main transaction. The spontaneous, unpremeditated character of the declarations, and the fact that they seem to be the natural and necessary concomitants of some rele1-vant transaction in which their author was a participant, constitutes the basis of their admission as evidence. If a sufficient period has intervened between the act and the statement for consideration, preparation or taking advice, the statement may be rejected. Tbe mere likelihood or probability that the statement was the result of advice or consideration may exclude it. Actual preparation need not be shown. Declarations made immediately after the principal transaction have been received in homicide cases. And the American cases, as a rule, do not sustain the strict Etaglish doctrine that the declarations, to be admissible, must be strictly contemporaneous with the main transaction, if the declarations are illustrative verbal acts and not mere narratives of what has passed.”

It would be difficult to reconcile the numerous cases in which the competency of declarations, offered as a part of the res gestee, are admitted or rejected. We can only seek to adhere to the general principles and apply it to the cases as-they arise. I think the declaration in this case is within the principle.

The next assignment of error is that the plaintiff was permitted to show by Ramseur that he was laughing at the egg-throwing after it was over; that the admission of this as substantive testimony was erroneous, and that his Honor expressly said that he admitted it as affecting the credibility of the witness. As the train came up Ramseur went to the express car; he heard a noise and looked around and saw that the egg had struck the plaintiff; that he was reaching down pulling something out of his collar'. The witness' went back of the platform, and did not go where the plaintiff was. To the question, “Ton were laughing at the time ?” he answered r “I suppose I was laughing, like everybody else was.” He said that he was laughing as he started back when he saw the plaintiff getting the egg out of his collar. To the question, “What were you laughing at ?” he answered: “I reckon I must have been laughing at that.” He further said that he saw tire plaintiff go up to’ Carroll and raise his cane. The witness then went behind the semaphore, where he could not see the plaintiff; did not intend to hide from him; made no remonstrance to the egg-throwing. It was in evidence on the part of the plaintiff that the crowd throwing the eggs had been in the witness’ office and that they came out together with the witness. The witness had denied this, and had testified that he saw no eggs thrown. It was. further in evidence that two eggs were thrown' after the witness saw the plaintiff getting eggs from his collar. Taking the whole testimony together, the fact elicited from Ramsour that he was laughing at the time and under the circumstances, was competent evidence to be considered by the jury, bearing upon the question whether he was aiding, abetting and encouraging tbe crowd in throwing the eggs, or failing to discharge his dnty to protect the plaintiff.

It will be observed that the plaintiff declares in two canses of action: the first charging active participation in the assanlt, and the second, that they neglected, failed and refused to1 restrain the conduct of the persons making the assault, or1 in any manner interfere with them, or to protect or'offer protection to the plaintiff against said assaults, etc. Certainly the fact testified to by him was relevant to the second canse of action. It could not successfully be contended that the agent of a railroad company could, under the circumstances testified to by the witness, pursue the course which he describes without a violation of duty to the passenger who was entitled to his protection, or at least to some effort to protect him after he saw the conditions by which he was surrounded. It is true there was much conflicting evidence in regard 1» these mattery but in the light of the charge the jury have found the fact to he as contended by the plaintiff. The fact that his Honor stated that it was competent to affect the credibility of the witness cannot affect the right of the plaintiff to have it considered by the jury in any other light to which he was entitled. The learned counsel for the defendant earnestly insists that this ruling is in conflict with the case of Phifer v. Railroad, 122 N. C., 940. In that case the issue was directed to the inquiry of negligence. The plaintiff was asked the question: “Were you careful?” Mr. Justice. Montgomery; speaking for the Court, says: “The answer to the question was one of opinion merely, and whether the plaintiff was careful while engaged in his work upon the trestle was not a matter of expert testimony, but of judgment and-common experience to be passed upon by the jury upon a detailed statement to them of the facts and circumstances connected with his conduct on that occasion.” With reference to the contention of counsel, there is a marked distinction between the two cases. Whether or not a man was laughing and at what he was laughing are not expressions of opinion, but are statements of fact. The answer to this question does not involve, certainly in common parlance, any detailed statements of facts. It simply describes the frame of mind, attitude and feeling in respect to the transaction which was being-investigated. Surely no objection could be made to asking a witness whether he was crying, whether he was mad, whether he was standing still or moving. These and like questions are competent for the purpose of showing the relation which the witness bore at the moment to the transaction and the parties thereto. The Court well decided that whether or not a man was careful depended not upon his own opinion, but upon the statement of facts, conduct, attitude, etc., from which the conclusion was to be drawn by the jury. After the most careful consideration we are of the opinion that the exception cannot be sustained.

The next exception states “that there was no testimony to show that Samsour, the agent, knew that any assault was. contemplated, nor that it was made, until it was actually made, when he was further from the crowd than the plaintiff was; and all the evidence shows that with the means at hand it could not have been possible for him to have prevented it.” There was evidence from which tbe jury might have inferred that Kamseur knew’ or had reason to apprehend that some assault upon the plaintiff was contemplated by the parties who came to the station. The plaintiff testified that, while he was walking up and down at or near the track, he saw some people coming from the direction of Shelby towards the station, walking very rapidly; that they went into the station somewhere; that there were three doors on that side next to the track; that one door entered into' the private ticket ■office and another into the wareuroom; that these people would go into one of these doors, his recollection is, the middle door, stay in there a little while, and then line up on the platform and laugh and talk among themselves, nudge each other with their elbows, eyeing the plaintiff; that he paid very little attention to it, and that a remark of Mr. Webb called his attention to it more than anything else; that when the train was announced the door of the office, or room in which these people were, was opened and a man “with books or papers” of some kind came out, and the crowd came out with him; some came out in front of him; these were the men who- threw the eggs; the man with the “books or papers under his arm” came out in the midst of the crowd and the crowd lined up, all except the man with the books and papers under his arm; that he walked in the direction of the end of the platform towards Charlotte. There was evidence to the effect that Kamseur was the man with the books and papers. This evidence, if believed by the jury, was sufficient to justify the inference that the agent knew, or had reasonable grounds to believe, that some assault was about to be made upon the plaintiff. It is true that the agent denies all of this, but we are not passing upon the weight of the evidence.

The next assignment of error is directed to what is said in regard to the action of the Court during the trial. The opdn-ion filed at the last term disposes of this phase of the ease and there is no necessity for a further discussion of it.

The other exceptions are directed to the suggestion that Hamseur was sixty feet from the plaintiff and as far or further from the crowd as the plaintiff, and that there was no available means of stopping the egging or laughing and jeering. ITis Honor fairly submitted this aspect of the case to the jury, and their verdict will not be disturbed.

It is further assigned as error that the Court considered the evidence that Thrower, the conductor, was within fifteen or twenty feet of the plaintiff and offered no protection, and did not consider all of the evidence that he was much further from the crowd than the plaintiff was, and that the conductor was too far from the crowd to afford protection. The deposition of Thrower, the conductor, was read without objection, and no instructions were ashed by the defendant in regard to his testimony or his conduct, nor was any reference made to it by his Honor in his charge. The case was tried, evidently, upon the conduct of Hamseur and Carroll. If there was anything in the testimony of Thrower, which the defendant regarded as injurious, or if it desired the Gourt to withdraw any part of the testimony, or specially charge the jury in regard thereto, it should have so requested.

This case, while one of first impression, and we think it not improper to say we sincerely trust of last occurrence, has received the most careful consideration. This Court deals entirely with the question as to the liability of the corporation, without regard to the active actors in the transaction except in so far as the defendant’s duty is concerned. Upon the well-settled principles enunciated by this Court and sustained by the authorities, there is no reversible error in the record, and the petition to rehear is dismissed.

Petition dismissed.

Waliceb, J., concurs in the concurring opinion.  