(concurring specially).
We concur in the order reversing the judgment and *570in the order reversing the denial of appellant’s motion for a new trial and remanding the case to the district court for a new trial. However, as such concurrence is based entirely upon the appellant’s third assignment of error and as the opinion of the chief justice finds such reversal necessary by reason of all four of appellant’s assignments of error, we find it necessary to set forth our views as briefly as may be.
The foregoing opinion correctly analyzes the complaint as containing two causes of action — the first being for unlawful assault and the second for unlawful assault and battery, both being alleged to be wilful and malicious. This analysis coincides in turn with the two separate episodes of September 15, 1943. The first of these episodes, namely, defendant’s pursuit of plaintiff as the latter was running towards the warehouse door and defendant’s overtaking of the plaintiff at the door and his catching of the plaintiff by the shirt, being the first episode and the basis of the cause of action for assault and battery. This episode, accepting the jury’s version of the case, was the only one in which defendant made any bodily contact with the plaintiff. The second episode was defendant’s pursuit of plaintiff when the latter was entirely off the defendant’s premises and even off the street fronting the defendant’s premises and was running away towards his own house pursued by defendant.
I. Appellant’s first assignment of error goes to the admissibility of evidence adduced by respondent both in cross-examination of the plaintiff and through respondent’s own witnesses concerning prior intrusions and trespasses on the part of plaintiff. We are unable to agree that the admission of such evidence was error, with particular reference to the first episode and the cause of action for assault and battery. Indeed, the foregoing opinion of the chief justice recognizes that “in view of the verdict of. the jury in the instant case” and the rule that force “may not be excessive, even though bodily harmful, if the actor reasonably believed *571the course employed was reasonably necessary to prevent or terminate the other’s intrusion,” the assault and battery and the force employed at the warehouse could not be deemed excessive, “and doubtless the jury so found * * The reasonableness of the force there employed would, it would seem to us, depend upon the defendant’s experience with the previous trespasses of the plaintiff. This has been most clearly expressed in the case of Bunten v. Davis, 82 N.H. 304, 133 A. 16, 18, 45 A.L.R. 1409. In that case the defendants discharged rifle shots against plaintiff’s automobile and sought to justify their conduct on the ground that they were defending their premises from unwarranted intrusion by the plaintiff and his companions. Plaintiff on the 4th of July was taking five young men for a ride in his car. As they passed defendants’ house both defendants were beside the road with a flashlight and gun. After passing the house some of the young men exploded dynamite. The car turned back and some one exploded more dynamite. The car then turned into the defendants’ premises and at her command her son fired at the car. The defendants, as grounds for their fear of damage to their property, offered to show previous experiences on like occasions. They were allowed to show all that occurred on the night in question but the rest of the offered evidence, including evidence of a like occurrence two years before, was excluded as being too remote. In reversing the judgment for the erroneous exclusion of such evidence, the court said:
“The defendant had the right to make reasonable defense of her property against invasion. * * * In the determination of the issue thus presented, the defendant’s knowledge of facts bearing upon the situation are to be taken into consideration. While the standard of conduct is external, the actor’s knowledge is included with other facts in ascertaining the reasonableness of the course pursued. * * *
“The nature of the defense is such that more is involved than merely the defendant’s state of mind. In order to *572make good the defense set up it was necessary that it be made to appear, not only that the defendant entertained certain apprehensions, but also that her knowledge justified her state of mind and the conduct induced thereby. The jury were to be the judges, not only of her belief, but also of the reasonableness of her belief and conduct. To deal with these propositions, it was essential that they be put in her place and supplied with all the facts which she had to consider. Her acts were to be judged in the light of all the circumstances which existed and were likely to influence conduct. (Citing authorities.) * * *
“Unless it could be concluded, as matter of law that the defendant’s former experience could not be found to furnish a justification or legal excuse for her conduct, she was entitled to put that experience before the jury. If justification might be found therefrom, it was her legal right to introduce the facts in evidence. * * * When the issue is the reasonableness of conduct, a narrow limit cannot be put upon the scope of the inquiry into the knowledge and experience of the actor.
“The issue of reasonable conduct is not usually proved by direct testimony to that end. It is a conclusion to be drawn by the trier of the fact from other facts that are put before him for his consideration. The appeal is to ‘the judgment and experience of the jury.’ * * * Hence it follows that all the surrounding circumstances become facts material to the case, as distinguished from circumstantial evidence from which a conclusion as t,o the existence of such facts is sought to be drawn. They are circumstances in proof, but they are not circumstantial evidence. * * *
“The mere fact that some of the occurrences offered in proof happened two years before the time in question did not make them remote. In view of the peculiar nature of the transactions involved, they were immediate. * * * Remoteness is a relative proposition. Time and space are only parts of the element to be considered.”
*573The respondent cites other authorities to like effect but we believe the foregoing case to be so well reasoned (see entire opinion) and so applicable in its facts to the first episode in this case that discussion of other authorities is not warranted. Appellant relies strongly upon the annotation in 63 A.L.R. 890 and states that it there appears that in 22 of the 33 jurisdictions that have considered the point it was held that evidence of prior trespasses on the part of the plaintiff was not admissible. It should be noted, however, that this annotation has to do entirely with the question of the admissibility of such evidence in mitigation of compensatory damages and does not deal with such evidence as justification for the defendant’s act or the reasonableness thereof. With all due respect to the foregoing opinion we cannot agree that the admission of the evidence in question, particularly as it applied to the first episode, the cause of action for assault and battery, was erroneous.
II. The second specification of error attacks instruction No. 15. The opinion of the chief justice in upholding this assignment of error does not quote the instruction, which reads as follows:
“You are instructed that a person has the right to defend his land and chattels against trespass or intrusion and in so doing has the right to do such acts and things as are intended to put the trespasser or intruder in immediate apprehension of a harmful or offensive contact or other bodily harm or confinement which is or may be in excess of that which he is lawfully entitled to actually inflict, provided his act is intended and reasonably believed by him to be likely to do no more than to create such apprehension in the mind of the trespasser or intruder.
“Therefore, if you find from a preponderance of the evidence, as herein defined, that the plaintiff was such a trespasser or intruder at the time set forth in the complaint and that the acts of the defendant were intended and reasonably believed by the defendant to be likely to *574do no more than to create such apprehension in the mind of the plaintiff, and if you further find from a preponderance of the evidence that while under such apprehension the plaintiff fell and injured himself in running from the defendant at the time alleged in the complaint, the defendant is not liable and your verdict should be for the defendant.”
The reason assigned by the chief justice for holding this instruction bad, is that it covers only the second episode, the defendant’s pursuit of the plaintiff when the latter was fleeing from the premises and when no steps or acts were required on the part of the defendant to prevent or terminate a trespass or intrusion. In our opinion, however, the first episode was covered by instruction No. 16, reading as follows: “You are instructed that to use or attempt to use force or violence upon or towards the person of another is not unlawful, when committed by a person preventing or attempting to prevent a trespass or other unlawful interference with real or personal property in his lawful possession, provided the force or violence used is not more than sufficient to prevent such offense, or more than seemed to a reasonable man under the circumstances to be necessary.”
The converse of this proposition would seem to be self-evident, namely, that if the force or violence used was not for the 'purpose of preventing a trespass, or was more than sufficient to prevent the trespass or more than would appear necessary under the circumstances to a reasonable man, the use of such excessive force would be unlawful. In any event no error was assigned for any alleged refusal by the trial court to give such converse instruction. Hence instruction No. 15, even assuming that it applied only to the second episode, was not erroneous. It should be emphasized that instruction No. 15 contains important language not quoted in the opinion of the chief justice, namely, that in defining the right of the owner of the premises to put the trespasser or intruder in immediate apprehension of a harmful or *575offensive contact, the same is restricted to the right of a person “to defend his lands and chattels against trespass or intrusion.” Under this instruction plaintiff’s counsel had the right to argue to the jury, and undoubtedly did so, that under the second episode the defendant was not engaged in defending the property from intrusion. We think the instruction was proper and in complete accordance with the rule stated in the Restatement of the Law.
III. We are in accord with the conclusion reached by the chief justice that the giving of instruction No. 22 was error. This instruction likewise is not quoted in full in the foregoing opinion and we find it necessary to set it forth. It is as follows: “You are instructed that the proximate cause of an injury as the term is used in this charge, in its legal signification is a cause which in its natural and continuous sequence, unbroken by any new cause, produces an event, and' without which the event would not have occurred, but in order to warrant a finding that any act of defendant is the proximate cause of an alleged injury, it must appear from the preponderance of the evidence as herein defined that the injury, if any is found, was the direct consequence of such act.”
Proximate cause had no place in the case and it was error to instruct the' jury that to find for the plaintiff it must appear that the injury was the direct consequence of defendant’s act. The jury had the right to find that defendant’s pursuit of the plaintiff when the latter was off of and fleeing from the defendant’s property, had no relation to any attempt to prevent or terminate a trespass or intrusion, or a threatened or attempted trespass or intrusion, and that the defendant’s pursuit of the plaintiff was therefore wrongful and unlawful. Under these circumstances the jury had the further right to find that by reason of such unlawful pursuit and by reason of defendant’s anger and threatening demeanor the plaintiff was put in such fear that he could not be reasonably expected to avoid even such *576ordinary danger involved in his flight. Under these circumstances, under which the defendant would not be privileged, the injury would not have to be the direct consequence of the pursuit. If the pursuit was a substantial factor in bringing about the injury and if the jury believed that it was unwarranted and unlawful under the circumstances, it would have been sufficient as a contributing cause as distinguished from the direct cause. In this conclusion we are not to be understood as negativing the right of the jury to believe the defendant’s testimony that he was trying to prevent the plaintiff’s circling back to the warehouse as he had done in the past.
IV. It is conceded in the opinion of the chief justice that the evidence of the plaintiff’s subsequent actions resulting in aggravating his injuries, namely a second fracture of the arm, would not have been improper had it been pleaded by the defendant. The relevancy of such testimony is referred to by the chief justice being “to affect the extent of damages, or to mitigate the same,” because plaintiff in such case rather than the defendant, would have been legally responsible therefor. The appellant’s fourth assignment of error does not even raise the point involved in this rule. The appellant simply asserts that evidence of a trespass subsequent to the assault could not be considered either as-justification for the prior assault nor in mitigation of compensatory damages. Of course it could not be in justification of the assault and was not offered for that purpose. The reason assigned by appellant why it could not be in mitigation of damages, is that such mitigation can only be sought when punitive damages are asked for. That, however, comes under an entirely different rule which the authorities appear fully to support. The evidence here, however, was offered not for that purpose but simply to show that damage caused by the second break was, or could have been the result of plaintiff’s own actions, a purpose which the chief justice concedes to be proper, but only if pleaded.
*577The appellant does not raise the question of the sufficiency of respondent’s answer to justify the introduction of evidence to show that plaintiff’s own subsequent acts aggravated his damage (neither he nor his doctor could testify as to what caused the breaking of the cast), and as respondent has had no opportunity to be heard on the point, we are averse to recognizing it as ground for reversal. Section 9385.93, N.C.L.1931-1941 Supp., provides: “The appellant shall, in his opening brief, state his points and such errors as he shall rely on * * Section 9385.94 reads: “The supreme court shall not decide any case on any point not raised in the opening brief or briefs in answer thereto without first giving all parties affected an opportunity to be heard upon such point.” See Robison v. Mathis, 49 Nev. 35, 234 P. 690; Wittenberg v. Wittenberg, 56 Nev. 442, 55 P.2d 619.