#### VANCE FLEMING and MRS. VANCE FLEMING v. W. L. HOLLEMAN and ARMOUR & COMPANY.

(Filed 12 November, 1925.)

1. Actions — Consolidation—Courts—Appeal and Error — Objections and Exceptions.

The appealing party must except to the consolidation of causes by the judges of the Superior Court, to present the matter to the Supreme Court.

2. Same — Prejudice.

It must appear on appeal from the consolidation of causes of action by the trial judge that it was prejudicial against the appellant therefrom, or that his rights were injuriously affected.

S.Evidence — Motions—Nonsuit.

In defendant’s motion to nonsuit upon the evidence, the evidence must be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable inference or intendment thereon.

4. Employer and Employee — Master and Servant — Pleadings — Admissions — N egligence — Instructions.

In an action to recover damages for the negligence of the one driving defendant’s automobile, the admission in the answer to the allegation in the complaint that he was the defendant’s local manager, and was driving, at the time of the alleged negligent injury, home from performing his duties to the defendant, and using the automobile in connection therewith, is an admission of his agency that will bind the principal for his negligent act.

5. Negligence — Evidence—Automobiles—Statutes—“Law of the Road”— Negligence per se — Nonsuit.

Upon evidence that the plaintiff was about in the middle of the street in a city after dark, assisting one whose buggy had been injured in a collision with an automobile, on a dark and stormy night, and that the defendant approached at a speed exceeding that allowed by law at such places, without signal or warning, where plaintiff could be seen by the light from a street lamp, with room to pass him without injury, and caused the injury complained of in- the action: Held,, the violation of the statute and ordinances enacted under statutory authority, under the circumstances was evidence of the defendant’s negligence per se, and sufficient to deny defendant’s motion as of nonsuit thereon, O. S., 2616, and _ 2618, amended by ch. 272, Public Laws of 1925.

6. Same — Contributory Negligence — Burden of Proof.

The burden of showing contributory negligence is on the defendant pleading it; and, Held, where the evidence of defendant’s actionable negligence is shown, the issue should be submitted to the jury.

7. Evidence — Personal Injury — Exhibiting Injury — Experts—Consent— Damages — Appeal and Error — Issues.

Where the plaintiff in an action to recover damages for a personal injury goes upon the stand and exhibits or exposes the injured place to the ' jury, the defendant, as a matter of right, may have it subjected to an *450expert or medical investigation upon the issue as to the amount of damages recoverable, and the action of the court requiring the consent of the plaintiff thereto is reversible error, entitling the defendant to a new trial, and only upon that issue when alone involved in the error.

Appeal by defendants from Daniels, J., and a jury, at May Term, 1925, of Wake Superior Court. Partial new trial.

Yance Fleming and his wife brought two separate actions against defendants. Complaints and answers were filed in both cases.

Plaintiff, Yance Fleming, contends: That on 19 February, 1924, W. L. Holleman was the local manager, agent and employee of Armour & Company, a corporation doing business in Raleigh, N. C., and on that date, about 6:30 o’clock p. m., was engaged in the operation of a Ford coupé for and in behalf of Armour & Company, and with its knowledge, consent and approval. That on the said date and hour, Yance Fleming was standing at the rear of a wagon that at said time occupied a position near the center of North Wilmington Street, between Jones and Lane streets, in the city of Raleigh, N. C., which.said wagon had shortly theretofore been struck and damaged by an automobile, and that plaintiff was assisting the owner of said wagon in making an inspection thereof in order to determine the extent of the damage thereto, and he was at said time facing in a northerly direction, when the defendant, W. L. Hollemaii, the local manager, agent and employee of the defendant, Armour & Company, who was operating its said Ford coupe for and in behalf of the said Armour & Company, and with its knowledge, consent and approval, approached said point on said North Wilmington Street in said Ford coupé, driving northerly on said street, and negligently, carelessly and recklessly, and without any notice or warning to the plaintiff, caused, allowed and permitted said Ford coupé to run into, over and upon the plaintiff, and violently collide with said wagon, and, as a direct and proximate result thereof, plaintiff was seriously, painfully and permanently injured. (1) In that the defendants negligently, carelessly and unlawfully ran and operated said Ford coupé over and upon said North Wilmington Street, which was a principal and much used street in the city of Raleigh, N. C., at a high, negligent and unlawful rate of speed; (2) In that the defendants negligently, carelessly and wrongfully ran and operated said Ford coupé in a negligent and careless manner, and in such manner as to endanger, and which did in fact endanger, the life and limb of persons rightfully using the said street at said time; (3) In negligently and carelessly failing to keep a reasonable, constant and proper lookout as it was their duty to have done; (4) In negligently and carelessly failing to observe the presence of the plaintiff, and in negligently and carelessly failing to signal, notify or warn him of the approach of said Ford coupé to said point; (5) *451and in negligently and carelessly failing to have said Ford coupé under control and in negligently and carelessly failing to reduce tbe speed thereof or to stop the Ford eoupé in order to avoid said collision, when by so doing the defendants could have avoided injuring the plaintiff; (6) and in negligently and carelessly failing to pass the plaintiff when there was ample space in said street for said automobile to have passed without running into and over the plaintiff.

The defendants contend that neither Holleman nor Armour & Company were negligent, and contend that in the operation of the Ford coupé by Holleman at the time of the injury, Armour & Company were in no way responsible. They set up the plea of contributory negligence and contend: (1) That the wagon was standing in the street, contrary to the city ordinance, and without a light or any warning to travelers on the street; it was the duty of the owner to remove it or provide a light or some other signal to warn travelers; (2) at the time of the collision the plaintiff was carelessly and negligently standing on or near said wagon, near the center of the street, that he knew or should have known the wagon was unlighted to warn persons traveling’ on said street; (3) that at the time of the collision, Holleman was driving the automobile at a slow and lawful rate of speed, in a careful and prudent manner, having the auto under control and keeping a careful and proper lookout; (4) that at the time of the collision it was raining and sleeting, which tended to obscure the vision of the driver, which fact the plaintiff knew or should have known; (5) that Fleming carelessly and negligently stood on or near the unlighted wagon in the center of a much traveled street, when he knew or should have known that the atmospheric condition was such that it was impossible for a person traveling in an auto to see unlighted obstructions. That he failed to give any signal or warning that he was in the street at the time. That the plaintiff’s carelessness and negligence was the proximate cause of the injury.

The record shows: “The court in its discretion ordered that these actions be consolidated and tried together.It appearing that these two cases, Nos. 9069 and 9070, arose out of the same alleged negligence of the defendant, and the only difference in them was as to the damages sought to be recovered by Yance Fleming in one case and Mrs. Yance Fleming in the other, and the court, of its own motion, ordered that the cases be consolidated and tried together.”

The issues submitted to the jury and their answers thereto, were as follows:

“1. Was the plaintiff, Yance Fleming, injured by the negligence of the defendant, W. L. Holleman, as alleged in the complaint? Answer: Yes.

*452“2. Was the plaintiff, Vance Fleming, injured by the negligence of_ the defendant, Armour & Company, as alleged in the complaint ? Answer: Yes.

“3. Did the plaintiff, Vance Fleming, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No.

“4. What damage, if any is the plaintiff, Vance Fleming, entitled to recover? Answer: $12,500.00.

“5. Was the plaintiff, Mrs. Vance Fleming, injured by the negligence of the defendants, as alleged in her complaint? Answer: No.

“6. What damages, if any, is the plaintiff, Mrs. Vance Fleming, entitled to recover of the defendants ? Answer:.”

There was a judgment on the verdict and appeal to the Supreme Court. Many exceptions and assignments of error appear in the record. The other material facts will be set out in the opinion and the relevant assignments of error.

Douglass & Douglass, B. N. Simms and B. L. McMillan for plaintiffs.

Winston, Winston & Brassfield and Jones, Jones & Horton for defendants.

ClaeksoN, J.

The consolidation of the two actions which defendants assign as error, we cannot so hold. Defendants did not except to the order, although plaintiffs did. The jury having found that Mrs. Vance Fleming was not injured by the negligence of the defendant and awarded her no damages, we think, on the whole record, defendants have not been prejudiced by the consolidation, or their rights injuriously affected. The principle laid down in Ins. Co. v. R. R., 179 N. C., p. 260, is correct: “The object of consolidating two- or more actions is to avoid a multiplicity of suits, to guard against oppression or abuse, to prevent delay, and especially to save unnecessary cost or expense; in short, the attainment of justice with the least expense and vexation to the parties litigant. Consolidation, however, is improper, where the conduct of the cause will be embarrassed, or complications or prejudice will result, which will injuriously affect the rights of a party. 8 Cye., 591.”

At the close of the evidence each defendant renewed his motion for judgment as of nonsuit against each plaintiff. The refusal of the court below was assigned as error. We have often said: “On a motion to non-suit, the evidence is to be taken in the light most favorable to- plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.” Lindsey v. Lumber Co., 189 N. C., 119, and cases cited; Barnes v. Utility Co., ante, 382.

Facts: Vance Fleming, who lived at 217 N. Wilmington Street, between J'ones and Lane streets (fourth house from corner on left-hand side *453going north), in Baleigh, at about 6:30 o’clock p. m., on 19 February, 1924, was in his living room reading the evening paper and heard a commotion outside — one calling for help. He testified, in part: “I went to Mr. Hinshaw’s wagon; it was south of Lane Street, and the shafts were in Lane Street, and there was plenty of light around there. I saw the wagon as I went out from the house and when I got there it was more to the east side of Wilmington Street. I thought I would assist him any way I could and was making an inspection of the wagon to see how badly it was damaged, and there was an argument about a bolster being damaged, and I struck a match and held it behind the hind wheel to see if it was broke, and some one hollered 'look out,’ and the lick all came at the same time, and that is when I was struck. I was standing at the left back wheel. I had no notice of the approach of a car, and no horn sounded. It broke my leg, and I was so that I could not get away from that spot, and was losing blood. After the automobile hit the wagon it bounced back. I was between the automobile and the wagon. Mr. Hinshaw was just ahead of me at that time.” He described his injuries and suffering, etc. . . . “It was about 6:30 in the afternoon when I had this accident, and it was after the lights were on. It was not very dark: it was dark under the part of the wagon I was inspecting, and I had to strike a match. It was a rainy night, but not sleety or freezing. Some one came in and said the wagon had been broken and I went out there to assist the man in trouble, Mr. Hinshaw. He was a little to the east; it was more to the right of the center of the street. I think I was there a little over five minutes. There were no lights on the wagon. I was southward of the wagon when I was hurt; while I was in that position some one bumped into me with a Ford and some one hollered all at the same time.”

J. G. Jones, who lives at 223 N. Wilmington Street, testified in part: “The night of Mr. Fleming’s injury I was on my porch. I saw the automobile that struck him; I saw it when it passed in front of the house, and then it was 100 feet from the point where it collided. It was making between twenty and twenty-five miles per hour. It was a rainy and bad night. I heard the car when it collided with the wagon and it was dark and I could not see it when it hit. The wagon was on the right side going up. There was plenty of room on the left for him to pass on the right side. I did not hear any signal of approach given of the car. At first there was another car that ran into the wagon. I was there on the porch and had been sick, and I heard the other car run into it. I think the mule or horse that was hitched to the wagon had been carried over to the side street. I am familiar with the arc light at the intersection of Wilmington and Lane Streets. There is nothing there to obscure the vision.of a person looking in the *454street. I could see it distinctly. I went to tbe scene of tbe collision after Mr. Fleming’ was burt and be was in tbe edge of tbe curve below tbe car. You could see tbe blood and be seemed to be suffering a great deal. I helped carry bim to tbe hospital and be was still suffering a great deal, and I helped undress bim. ... I was on my porch and I live on tbe west side of Wilmington Street next door to where Mr. Fleming lived. My bouse is about 100 feet from where tbe crash was. This wagon was standing a little to tbe right of tbe center of Wilmington Street, facing north. I think tbe arc light is in tbe center of tbe intersection, practically all of them are. I think this light is practically in tbe center of tbe street. This night was bad and rainy, and it was cold. I expect it was cold enough for tbe rain to freeze on tbe windshield, but I am not sure. Tbe automobile struck tbe wagon and I beard tbe crash; I saw some one but did not know it was Mr. Fleming until afterwards.”

Part of C. S., 2616, is as follows: "Upon approaching1 a pedestrian who is upon the traveled part of any highway, and not upon a sidewalls, and upon approaching an intersecting highway or a curve, or a corner in a highway where tbe operator’s view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn, or other device for signaling. (Italics ours.) Upon approaching an intersecting highway, a bridge, a dam, curve, or deep descent, and also in traversing such intersecting highway, bridge, dam, curve, or descent, a person operating a motor vehicle shall have it under control and operate it at such speed, not to exceed ten miles an hour, having regard to the traffic then on such highway and the safety of the public.”

C. S., 2618. It may be noted that this section has been amended by Public Laws 1925, chap. 272:

(1) 20 miles per hour in the built-up residential section of any village, town or city, etc.

(2) 12 miles per hour in the business portion of any town or city.

(3) 15 miles per hour while passing any church or school when people are leaving or entering.

(4) 15 miles per hour in traversing an intersection of highways when the driver’s view is obstructed, etc.

(5) 15 miles per hour in traversing or going around corners of a highway, etc.

(6) 35 miles per hour on all highways beyond the built-up residential section of incorporated cities, towns, etc.

(7) The governing body of every incorporated city or town shall have authority by ordinance to make reasonable street crossing regulations. (This section was passed to meet the decision in S. v. Stallings, 189 N. C., p. 104.)

*455(8) No person shall operate upon tbe public highways or streets a motor vehicle with muffler cut-out open, or with exhaust whistle or objectionable signal devices.

This act shall not be construed to repeal any Public-Local Law providing for a greater rate of speed, etc. t

At the time of the collision and injury, under the statute then in force, it being in a residential portion of the city, a person could not operate a motor vehicle at a rate of speed in excess of 18 miles per hour. C. S., 2618, supra. The witness, Jones, testified for plaintiff that defendant, Holleman, was making between twenty and twenty-five miles per hour.

In Davis v. Long, 189 N. C., p. 134, we said: “A statutory duty was imposed on defendant. He failed to do what the law required of him. This was negligence per se, and it was a question for the jury to say whether or not such negligence was the proximate cause of the injury to plaintiff.” Albritton v. Hill, ante, 429.

The second issue: “Did Vance Fleming by his own negligence contribute to his injury?” The burden of proof rests with defendant. Plaintiff, on an act of mercy, had gone into the public street at the cry for help — he went to “assist the man in trouble.” A Mr. Hinshaw’s wagon had been struck by a passing automobile. It was a rainy and bad night, but there was an arc light at the intersection of Wilmington and-Lane streets. Fleming was standing at the left back wheel. He testified “there was plenty of light around there.” He was struck from the rear by the car Holleman was operating, and was between the automobile and the wagon. No notice was given Fleming by sounding a horn or otherwise. There was abundant evidence to be submitted to the jury that defendant, Holleman, was negligent and his negligence was the proximate cause of the injury, and that plaintiff Vance Fleming was not guilty of contributory negligence. All the aspects of negligence and contributory negligence were submitted carefully to the jury by the court below, and the law applicable to the facts. Fleming was in the street, well lighted, a place that he had a right to be, and without warning the defendant, running twenty or twenty-five miles an hour, struck him. The defendant Holleman contends to the contrary, but the jury has accepted plaintiff’s version. We think the court below was correct in refusing to grant the motion to nonsuit. The law of the road gives pedestrians rights which the drivers of automobiles are bound to respect. The rule of law and of the road is that when approaching a pedestrian upon the traveled part of the highway, the person operating a motor vehicle shall slow down and give a timely signal with his bell, horn or other device for signaling. C. S., 2616, supra. Although this has been statutory law for nearly nine years, yet *456injuries are occurring almost daily by nonobservance of tbe rule of tbe road by automobile drivers. Tbe speed regulations bave been in force a like time.

Defendants assign error: “To tbe statement of tbe court tbat tbe defendant, Armour & Company, admitted tbat tbe defendant, Holleman, was at tbe time of tbe injury operating its car for and on bebalf of tbe defendant Armour & Company. There is no sueb admission on tbe part of Armour & Company. It did admit in its answer tbat it owned tbis automobile. It admitted tbat Holleman was its employee, but it did not admit tbat tbe defendant Holleman was at tbe time of tbe accident acting witbin tbe scope of bis authority or tbat be was engaged in tbe business of Armour & Company.” This cannot be sustained. Section 6 of plaintiff’s complaint is as follows: “Tbat on tbe 19th day of February, 1924, tbe defendant, W. L. Holleman, tbe defendant, Armour & Company’s local manager, agent and employee, was engaged in tbe operation of said Ford coupé for and in bebalf of tbe defendant, Armour & Company, and with its knowledge, consent and approval.” Section 6 of answer is: “Tbat tbe allegations of paragraph 6 of tbe complaint are admitted.” W. L. Holleman testified: “I used tbis car in going backward and forward. On tbis night in question I was driving a Ford tbat belonged to Armour & Company, which car I kept at my borne. On 19 February, 1924, I drove tbis car toward my borne. . . . Have been using it constantly since then. I only use tbis car in tbe company’s business. At tbe time of tbe accident I was on my way borne.” We think all the evidence on tbis phase sufficient to justify tbe court below in tbe charge as given. Williams v. R. R., ante, 366.

From a careful review of tbe case we can find no reversible or prejudicial error on tbe first, second and third issues. On tbe fourth issue as to damages, we feel compelled to send tbe case back for a new trial.

Tbe testimony of Yanee Fleming, in bis direct examination, i.s as follows: “My leg is swollen some today, but not as much as yesterday. ("Witness here pulls bis trousers up and exhibits bis leg to tbe jury.) It was broken right here. (Indicates a place about midway between tbe knee and ankle.) There is a difference in tbe color of tbe two limbs. When you press upon tbis injured leg tbe dent will stay in, it is like a mellow apple, and tbe other leg is not like tbat. There is not much feeling in tbe injured leg. Tbe most severe pain is right across here. (Indicates broken place.) I still suffer with pain in my hip; it is a tired, aching feeling.”

Dr. Ben J. Lawrence and Dr. Upchurch, experts, testified to examining and treating Fleming after tbe injury, and tbe extent of tbe injury, etc. After tbe testimony of plaintiff and Dr. Lawrence, and during *457the progress of the trial, the following occurred: “In open court the attorneys for the defendant tender to the plaintiff, Drs. Glascock and Caveness and ask leave of the court for them to examine the plaintiff either in the presence of the jury or in the back room. Counsel for plaintiff asked that this be done in the presence of Dr. Ben J. Lawrence, and it having been disclosed to the court that there' seems to be some feeling between Dr. Glascock and Dr. Lawrence, the court declines the motion, on the ground that these gentlemen do not seem to be personally friendly.” The defendants excepted and assigned error. The court: “I understood, with the plaintiff’s consent, that the plaintiff shall be examined by a physician selected by the defendants in the presence of Dr. Lawrence, but it appearing that Dr. Glascock, selected by the defendant, refused to go to the office of Dr. Lawrence, as there seems to be some feeling, I decline to order the plaintiff to be examined under the circumstances that have been mentioned.”

22 C. J., p. 790, states the matter as follows: “A plaintiff cannot be compelled to submit to an examination by an expert in the presence of the jury, and the refusal of a request for such an examination is not rendered improper by the fact that the plaintiff afterwards offered to exhibit the injured member to the jury. But an expert may, at the instance of plaintiff, examine his injured member in the presence of the-jury, and where plaintiff voluntarily exhibits the injured member to the jury, it may be examined by an expert on behalf of the defendant.”

Under the facts and circumstances in the instant case, we think defendants had a right to have an expert examine plaintiff’s injured member. This right does not extend except to the injured member or part of body that plaintiff voluntarily exhibits to the jury. In the trial of all cases the purpose is to ascertain the truth. The “inviolability of the person” is not lightly to be impinged, but where a plaintiff voluntarily waives the inviolability by exposing his person to accentuate the damage, it is but justice that at the instance of a defendant who may suffer by the exposure to have expert examination. In Haynes v. Trenton, 123 Mo., p. 336, it is said: “Defendant had the undoubted right in his ease, at any time after the injuries had been shown to the jury to have physicians examine the injured leg and testify as experts to its character and probable permanency.” In Pronskevitch v. C. & A. Ry. Co., 232 Ill., p. 140, it is said: “Appellee having offered his body voluntarily to the inspection of the jury, it then became a subject of examination under such reasonable restrictions as the court might see fit to require. Inasmuch as appellee offered to submit to such an examination, in the presence of the jury, as the appellant might see fit to make, there was no just cause for complaint.” Galveston, H. & S. A. *458 Ry. Co. v. Chojnacky, 163 S. W. Rep., p. 1012, tbe Court says: “Tbe moment, however, be submitted bis eyes for examination to tbe jury, be doffed tbe armor placed on bis person by tbe band of tbe law and was tbe subject of examination of experts.”

Frequently attorneys representing opposing sides in injury cases agree to an examination in tbe interest of truth and justice, and the practice has become in recent years prevalent and to be commended. We have been unable to find any authority, and none has been called to our .attention, where this Court has before passed on tbe question here presented. Under tbe facts and circumstances of this case we bold that when tbe plaintiff voluntarily exhibited tbe injured member, or part of tbe body, to tbe jury, tbe defendant bad a right to tbe examination. It is for tbe trial court in its discretion to allow tbe examination “under reasonable restrictions” in tbe presence of the jury. One of defendants’ requests was “in tbe presence of tbe jury.” The old saying is applicable: “What is sauce for tbe goose is sauce for tbe gander.” We think tbe weight of authority permits expert examination before tbe jury under tbe facts here. Tbe whole subject is most interestingly discussed by Wigmore in bis valuable work on Evidence, 4th Vol., 2 ed., sec. 2220. Lockhart’s Handbook on Evidence, sec. 32; Chicago & N. W. Ry. Co. v. Kendall, 167 Fed. Rep., p. 71; Louisville & Nashville R. R. Co. v. Simpson, 111 Ky. Rep., 757; C. R. I. & T. Ry. Co. v. Langston, 19 Texas, C. A. Rep., 572.

On tbe other issues tbe case has been carefully tried by tbe court below, tbe charge was fair and comprehensive, covering every phase presented, and the law carefully applied to tbe facts. Tbe case is sent back only for trial on tbe fourth issue of damages.

For tbe reasons given, there must be a partial

New trial. •