#### GEORGE A. LUPTON v. THE SOUTHERN EXPRESS COMPANY.

(Filed 20 October, 1915.)

1. Evidence — X-Ray Photographs — Accuracy.

X-Ray photographs taken of a personal injury alleged to have been negligently inflicted by the defendant, in an action to recover damages therefor, may, with proper safeguards as to their accuracy, be used by the witness who has made them in explaining his evidence and be shown by him to the jury for their consideration and enlightenment.

2. Same — Expert Testimony — Exhibits to Jury.

Where an X-Ray picture of a personal injury, pertinent to the inquiry in an action to recover damages, has been made by a medical expert, who testifies to some experience in making such pictures, and it is a reasonable inference from his evidence that it was an accurate and true representation, and his whole evidence shows that he believes it to be so, it is sufficient evidence of the accuracy of the photograph for the expert to explain his testimony therewith and exhibit them to the jury.

3. Appeal and Error — Evidence—Statement of Contentions — Admissions.

Where the evidence of both parties are in harmony with the establishment of a certain fact, and the trial judge has erroneously stated it as an admission, the objecting party should have caused the correction to have been made at the time, and in this case no reversible error is found, the judge having clearly stated the contentions of the parties and applied the law applicable to the evidence.

4. Instructions — Trials—Charge as a Whole — Harmless Error.

The error complained of in the charge in this case is untenable, being taken to statements by the court of the contention of the parties, which arose from the evidence, and to single expressions taken from a paragraph, the charge, construed as a whole, being correct; and this applies to a statement of the court, relating to the contention of the parties, that compensation cannot be awarded for physical pain and mental suffering, which taken alone would be error.

Appeal by defendant from Connor, J., at the June Term, 1915, of CARTERET.

Action to recover damages for personal injury. The plaintiff introduced evidence tending to prove that while on the platform of the railroad company at New Bern, for the purpose of taking passage on the train, an agent and employee of the defendant negligently ran a heavy truck against him, striking him violently in the back, causing him to fall, and the truck passed over one of his feet, to his serious injury.

The defendant introduced evidence tending to prove that there was no negligence; that the plaintiff was standing on the platform holding to a post, and, as the truck passed him that his foot slipped and went under the truck.

Dr. Pollock, a witness for plaintiff, testified:

I am a doctor of medicine. (Admitted to be an expert.) Have had some experience in X-Ray work. Took X-Ray photograph of Lupton’s *672foot, as shown by plates in my band. Took photographs of his right foot. No injury there. Also of left foot. (Shows plates to the jury. Defendant objects; overruled; defendant excepts.) Photograph of left foot shows that bone of fourth toe of foot has been broken. Plate shows callous formed at broken place. This callous would cause pain and is permanent. Pain caused by callous on bone of fourth toe rubbing against bone of third toe. Friction sets up inflammation and causes pain.

Cross-examination: Plate does not show injury to big toe, nor whether injury to fourth toe was done in childhood or not. I did not examine or photograph Lupton’s back. Know Dr. Primrose. He would possibly know, after examination, whether bones were broken or not. Callous does not necessarily form on both sides of broken bone. X-Ray is only sure way, except by operation, to ascertain whether bones are broken or not.

At the conclusion of the evidence there was a motion for judgment of nonsuit, which was overruled, and the defendant excepted.

The court charged the jury, among other things, as follows:

In this case, counsel for plaintiff and defendant, during their argument to you, have admitted that George A. Lupton, the plaintiff, while standing at or near the shed óf the Norfolk Southern Railroad Company, at New Bern, was struck by a truck being moved by employees of the defendant, the Southern Express Company; that while engaged in conversation with Mr. Bell, to whom he had just paid a bill, and while putting his pocketbook into his pocket, the truck struck him. Defendant excepted. There was a verdict and judgment for the plaintiff, and the defendant excepted and appealed.

O. R. Wheatly and Abernathy & Ramis for plaintiff.

Julius F. Duncan for defendant.

AlleN, J.

There is no objection to the description of the injury as disclosed by the X-Ray plates. The exception is only to the exhibition of the plates to the jury, and as there is nothing to show any variance between the plates and the description given by the witness, we might dispose of the exception upon the ground that the ruling permitting the jury to see the plates, if erroneous, is harmless. "We are, however, of opinion that it was competent to introduce the plates and to permit the jury to see them.

What was said in Franh v. Bank, 37 N. Y. Sup. Ct., 34, which is approved in Bank v. McArthur, 165 N. C., 374, in reference to the microscope, is equally pertinent as applied to the X-Ray: “The administration of justice profits by the progress of science, and its history shows it to have been almost the earliest in antagonism to popular *673delusions and • superstitions. Tbe revelations of tbe microscope are constantly resorted to in protection of individual and public interests. It is difficult to conceive of any reason why, in a court of justice, a different rule of evidence should exist in respect to tbe magnified image presented in tbe lens of tbe photographer’s camera and permanently delineated upon tbe sensitive paper. Either may be distorted or erroneous through imperfect instruments or manipulation, but that would be apparent or easily proved. If they are relied upon as agencies for accurate mathematical results in mensuration and astronomy, there is no reason why they should be deemed unreliable in matters of evidence. Whenever what they disclose can aid or elucidate the just determination of legal controversies, there can be no well-founded objection to resorting to them.”

It has been held in several cases in our reports that the ordinary photograph when shown .to be a true representation and taken under proper safeguards is admissible in evidence (Davis v. R. R. Co., 136 N. C., 115; Pickett v. R. R., 153 N. C., 148), and the same rale prevails as to photographs taken by the X-Eay process.

“While a picture produced'by an X-Eay cannot be verified as.a true representation of the subject in the same way that a picture made by a camera can be, the rule in regard to the use of ordinary photographs on the trial of a cause applies to photographs of the internal structure and conditions of the human body taken by the aid of X-Eay, when verified by proof that they are a true representation. It has been held that, to constitute a foundation for the introduction of an X-Eay photograph in evidence, it is not essential that it appear that it was taken by a competent person, nor that the condition of the apparatus with which it was taken and the circumstances under which it was taken were such as to insure an accurate picture; but where it has been shown by the evidence of competent witnesses that it truly represents the object it is claimed to represent, there is sufficient foundation for its admission.” 17 Cyc., 420.

“Photographs taken by X-Eay process are admissible upon the same principles under similar circumstances with like effect as ordinary photographs.” Ene. Ev., vol. 9„ 775.

“The accuracy of a properly taken X-Eay photograph of the bones of a living body will be judicially known.” 1 Chamb. Mod. Ev., vol. 1, sec. 729.

“The process of X-Eay photography is now as well established as a recognized method of securing a reliable representation of the bones of the human body, although .they are hidden from direct view by the surrounding flesh, and of metallic or other solid substances which may be imbedded in the flesh, as was photography as a means of securing a *674representation of things which might be directly observed by the unaided eye at the time when photography was first given judicial sanction as a means of disclosing facts of observation, and for that purpose X-Bay photographs, or sciagraphs, or radiographs, as they are variously called, have been held admissible on the same basis as photographs. Bruce v. Beall, 99 Tenn., 303, 41 S. W. Rep., 445; Miller v. Dumon, 24 Wash., 648, 64 Pac. Rep., 804; Chicago, etc., Electric Co. v. Spence, 213 Ill., 220, 72 N. E. Rep., 796; Carlson v. Benton, 66 Neb., 486, 1 Am. Cas., 159, 92 N. W. Rep., 600; Geneva v. Burnett, 65 Neb., 464, 91 N. W. Rep., 275; 1 Wigmore Evidence, paragraphs 795-797. As is said in Mauch v. Hartford, 112 Wis., 40, 87 N. W. Rep., 816: Tt is the duty of courts to use every means for discovering the truth reasonably calculated to aid in that regard. In the performance of that duty every new discovery, wfien it shall have passed beyond the experimental stage, must necessarily be treated as a new aid in the administration of justice in the field covered by it. In that view, courts have shown no hesitation, in proper cases, in availing themselves of the art of photography by the X-Bay process.’ ” S. v. Matheson, 130 Iowa, 440.

This case is also reported in 8 A. and E. Ann. Oases, and the editor states his conclusion, in the note on page 435, to be: “There seems to be no doubt of the admissibility of X-Bay photographs in evidence upon a proper occasion. It is now a recognized fact that by the aid of proper apparatus a picture of the framework of the human body may be obtained that will more or less sharply define the .skeleton and any foreign substance that may be lodged in the body. Therefore X-Bay photographs are admissible in evidence when proper proof of their accuracy and correctness is produced. Miller v. Mintum, 73 Ark., 183, 83 S. W. Rep., 918; Chicago, etc., Electric R. Co. v. Spence, 213 Ill., 220, 72 N. E. Rep., 796; Jameson v. Weld, 93 Me., 345, 45 Alt. Rep., 299; De Forge v. New York, etc., R. Co., 178 Mass., 59, 59 N. E. Rep., 669; Carlson v. Benton, 66 Neb., 486, 1 Ann. Gas., 159, 92 N. W. Rep., 600; Bruce v. Beall, 99 Tenn., 303, 41 S. W. Rep., 445. See, also, Frazer v. California St. Cable R. Co., 146 Cal., 714, 81 Pac. Rep., 29; Sias v. Consolidated Lighting Co., 73 Vt., 35, 50 Alt. Rep.” Carlson v. Benton, 66 Neb., 486; Bruce v. Beall, 99 Tenn., 303, and other cases cited in the note to the quotation from Cyclopedia of Law, support the text.

There was also no error in permitting the jury to see the plates. The rule, based on want of confidence in the intelligence of jurors, formerly prevailed that jurors might hear but could not see, but it has been expressly repudiated in this State. Martin v. Knight, 147 N. C., 578; Nicholson v. Lumber Co., 156 N. C., 59.

In the first of these cases Justice Connor, discussing the propriety of permitting a jury to see a paper whose genuineness was in contro*675versy, says: “Tbe purpose of tbe evidence is to aid tbe jury. Why convey information tbrougb tbe sense of bearing and exclude tbe sense of seeing? Can it be doubted for a moment tbat tbey would receive a clearer, more intelligent view of tbe matter in controversy if permitted to bave tbe explanation made witb tbe aid of their sight? "We know from experience tbat arguments in this Court are illuminated and our apprehension of tbe matter in controversy made clearer by maps in cases involving tbe management of machinery or tbe situation of parties. It was supposed in tbe past tbat tbe average juror was not sufficiently intelligent — educated—to comprehend tbe fine shades of difference in bandwriting. "Whatever may be thought of tbe soundness of tbe reason in tbe past, it is manifest tbat it has but little force at this time. As education and intelligence bave increased and tbe methods of illustration improved, tbe capacity of tbe ‘average man’ to write and pass upon tbe handwriting of others has advanced.”

It is true tbat tbe witness who made tbe X-Bay photographs does not say, in so many words, tbat tbe photograph is an accurate and true representation of tbe condition of tbe foot, but this is a reasonable inference from bis evidence. He bad sworn tbat be would tell tbe truth; be was an expert and experienced in tbe manipulation of tbe X-Bay, and bis whole evidence shows tbat be believed tbe photographs to be a true representation of tbe condition of tbe foot.

His Honor did not, at any time, tell tbe jury, as contended by tbe defendant, tbat tbe defendant admitted negligence, and if be erroneously stated tbat counsel for tbe defendant admitted in tbe argument tbat tbe plaintiff was struck by tbe truck, it was tbe duty of counsel to correct bis error. LaRoque v. Kennedy, 156 N. C., 372.

All tbe evidence for plaintiff and defendant showed tbat tbe plaintiff was injured by tbe truck, and tbe question in controversy was bow tbe injury occurred, and this was submitted to tbe jury under proper instructions, which stated fully tbe contentions of tbe defendant.

There are other exceptions to tbe charge which need not be considered separately. Tbey consist- principally -of objections to statements of contentions of tbe parties, which arose upon tbe evidence, and to single expressions taken from a paragraph, which are free from criticism when considered in connection witb tbe context. We would not approve tbe expression tbat adequate compensation cannot be awarded for physical pain and mental suffering, standing alone, but tbe whole charge shows tbat bis Honor was indicating tbe difficulty of fixing a money value for physical pain and mental suffering, which all admit, and tbat be instructed tbe jury tbat no damages could be awarded as punishment, and only a just compensation based on tbe evidence.

Several exceptions are to charges favorable to tbe defendant.

*676Tbe motion for judgment of nonsuit is not discussed'in tbo brief and need not be considered, except to say tbat the evidence in the record was sufficient, if believed, to establish the negligence of the defendant and damage to the plaintiff as the proximate result thereof.

We find no error upon the trial.

No error.

Clark, C. J.,

concurs, especially in the proposition illustrated by the citation from S. v. Matheson, 130 Iowa, 440: “It is the duty of the courts to use every means for discovering the truth, reasonably calculated to aid in that regard. In the performance of that duty, every new discovery, when it shall have passed beyond the experimental stage, must necessarily be treated as a new aid to the administration of justice in the field covered by it. In that view, courts have shown no hesitation, in proper cases, in availing themselves of the art of photography by the X-Ray process.” This case is reported in 8 A. and E. Ann. Cases, 435, with annotations.

When the question of the admissibility of photographs was first presented to this Court, in Hampton v. R. R., 120 N. C., 534, it was held by a divided Court that they were inadmissible, because the Court had never known of their being used; but the dissenting opinion in favor of their admissibility has ever since been held to be the law. In Lowman v. Ballard, 168 N. C., 16, the Court disallowed the validity of service of process over the telephone by a divided Court, but this has since been allowed, except as to summons (as to which the statute is silent) by chapter 48, Laws 1915.

The admissibility of the X-Ray photography as evidence is now well accepted in jurisprudence.