tends to show that the plaintiff was negligent in the means adopted for his cure, or that such a position was taken by the defendant at the trial; and it seems to us plain that this socalled "issue" has been raised out of the record for the purpose of avoiding the effect of the ruling discussed. The judgment should be reversed, and a new trial granted, with costs to abide the event. POTTER, J., Concurs. WALLACE ข. WESTERN NORTH CAROLINA R. Co. (North Carolina Supreme Court, December 21, 1889.) Contributory Negligence-Burden of Proof-Validity of Statute.-A statute placing the burden of proving contributory negligence upon the defendant in an action for damages for personal injuries, affects only the remedy and impairs no vested right, and is within the legislative authority. Damages - Evidence-Plaintiff's Net Earnings. Although the amount which the plaintiff, in an action for personal injuries, was earning previous to the injury may be shown as affecting the amount of damages, evidence as to the net earnings of the plaintiff in the exercise of his trade, is inadmissible. Same-Measure of Damages. In an action for damages for personal injuries, the plaintiff is entitled to recover one compensation for all injuries past and prospective, in consequence of the defendant's wrongful or negligent acts, including indemnity for actual nursing, medica! expenses, and loss of time, or loss from inability to perform labor or capacity to earn money; he is entitled to a reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering, both of the body and mind, resulting immediately and necessarily from the injury. APPEAL from Superior Court, McDowell County. Action to recover damages for personal injuries sustained by the plaintiff whilst a passenger upon one of defendant's trains. The following errors of law were assigned by the defendant: (1) The court's refusal to allow the defendant to ask the plaintiff what his net earnings were in the exercise of his trade. It was competent upon the question of damages to be assessed in favor of the plaintiff. (2) The court's refusal to instruct the jury, as required in the fourth instruction prayed by the defendant, that it was "usual and proper for a passenger to remain in his seat, and especially so on freight trains, while being transported." (3) The court's refusal to instruct the jury, as prayed in the fifth instruction of defendant, "that if the plaintiff, by remaining in his seat could have avoided the injury, and his getting up was the cause of the same, then he contributed to his injury by his negligence." (4) The court's refusal to instruct the jury, as requested in the sixth prayer of defendant: "There being no dispute about the fact that the plaintiff did get up from his seat, and was injured by reason thereof, the court should find as a proposition of law that he contributed to his injury by his negligence, and direct the jury to find the second issue in favor of the defendant." (5) The court's refusal to instruct the jury, as prayed, "that there is no evidence that the locomotive was overloaded." (6) The court's refusal to instruct the jury, as prayed in the eighth prayer of defendant, "that, in assessing the damages the plaintiff is entitled to recover, the jury should award the plaintiff compensation only for the injuries he suffered." (7) The refusal of the court to instruct the jury, as prayed in the ninth prayer of the defendant, "that the burden of proof, in the light of the evidence in this case, is upon the plaintiff to show negligence on the part of defendant, because there is excited in the mind of the court by his (plaintiff 's) evidence a suspicion of contributory negligence on his part; and, further, in the light of the evidence in the case, the burden of proving contributory negligence is not upon the defendant, but upon the plaintiff to disprove the same. This is so, because the plaintiff's own evidence does raise a suspicion of negligence on his part." (8) The laying down to the jury in the court's charge abstract propositions, without applying the principles to the facts in this case. (9) In not saying to the jury there was no evidence of the length of the train, it only being shown it was a long train. (10) In not instructing the jury they could not consider, on the question of damages to which he was entitled, what plaintiff has paid for medical aid and nursing. The court should have gone further than to say there was no evidence of the amount paid. Defendant appeals from a verdict for the plaintiff. D. Schenck and Busbee & Busbee for appellant. Case stated. CLARK, J.-When this case was here the first time (98 N. Car. 494, 34 Am. & Eng. R. Cas. 553), the evidence being substantially the same as now sent up, the court held that the judge below erred in instructing the jury that there was no evidence of contributory negligence, and that such issue should have been submitted to the jury. When the case was again before this court (101 N. Car. 454, 37 Am. & Eng. R. Cas. 159), while it went off upon another point, the same exceptions to the charge were made substantially as now, and this court said: "In respect to other assignments of error, we are of opinion that there was evidence to go to the jury tending to prove that the locomotive was overloaded, and of careless management of it; that the court could not properly instruct the jury, in the light of all the evidence, that the injury sustained by the plaintiff was the result of a mere accident; nor should it have been said to them that, in view of all the evidence, the plaintiff could not recover; nor that, accepting the plaintiff's own evidence as true, he was chargeable with contributory negli gence." As the evidence now is almost literally the same, with the addition by plaintiff of the omitted fragment of testimony which then procured the defendant a new trial, we think that this is conclusive of all the points raised by defendant's assignment of errors applicable to the first and second issues, except the seventh and eighth. Burden of proof-Con The statute (chapter 33, Acts 1887) places the burden of proving contributory negligence upon the defendant. This only affects the remedy, and impairs no vested right. It was competent for the legislature to stitutionality enact it. It was not error to refuse to charge, of statute. as asked by defendant: by defendant: "In the light of this case, the burden of proving contributory negligence is not upon the defendant, but upon the plaintiff to disprove the same." Nor do we think the charge is open to the objection urged in the eighth assignment of error. His honor's charge was a careful application by him of the principles of law appropriate to the different phases of fact as they should be found by the jury. It is urged, however, there was error in the court's refusal to allow defendant to ask the plaintiff what his net earnings Evidence as to were in the exercise of his trade. Kesler v. Smith, plaintiff's net 66 N. Car. 154. What plaintiff's accumulations. earnings. had been was an immaterial matter. He might have chosen to spend his earnings or to hoard them. That could not affect the measure of the damages sustained by him by his injury. Nor would it make any difference whether he had a large family dependent on him or not, except in cases where the circumstances entitle the plaintiff to recover exemplary damages. 2 Wood, Ry. Law, 1242. An inquiry as to his earnings in his business is competent. It is not itself a rule of damages. There are many other elements of damages to be considered, and, upon all the circumstances, it is for the jury to say what is a reasonable and fair compensation which the defendant should pay the plaintiff by way of compensation for the injury he has sustained. Lord COLERIDGE in Phillips v. London & S. W. R. Co., 42 Law T. (N. S.) 6. In the same opinion, which is a very clear and able exposition on this subject, his lordship directs the attention of the jury to the amount of plaintiff's earnings as one of the material circumstances to be considered by them. In Nash v. Sharpe, 19 Hun (N. Y.), 365, PRATT, J., says: "Evidence of the nature and extent of the party's business, or how much he was earning from his business, or realizing from fixed wages, is proper upon the question of damages." "The age and occupation of the injured person; the value of his services; that is, the wages which he has earned in the past, whether he has been employed at a fixed salary or as a professional man-are proper to be considered." 2 Wood Ry. Law, 1240, and cases there cited. The rule is indeed well settled, and, had the jury been cut off from the information which could properly be brought out by the inquiry, it would have been our duty, without disturbing the findings of the jury upon the first two issues, to have directed a new trial upon the issue as to the amount of damages as was done in Burton v. Railroad, 84 N. Car. 192. But upon examination of the record we find that the plaintiff had replied, immediately before the excluded inquiry, to a question by defendant's counsel: "At that time, I was getting $1.50 per day and board. I was always at work, the weather permitting." This, we take it, was a clear statement that his net earnings were $1.50 per day, when the weather permitted, in his trade of brick-layer and plasterer." If the question excluded was intended to repeat the inquiry already answered, it was no error to exclude it. If it was meant by it to inquire what were his net earnings at his trade after supporting himself and family, it was incompetent. That a man's wages may all be required in the support of his family, without leaving him any "net" earnings, in no wise diminishes his damages in losing his capacity to earn them. If the object was to show that $1.50 was more than his usual earnings, the question should have been so framed or this purpose stated by counsel. Measure of damages. As to the sixth assignment of error, the court charged the jury: "In this class of cases the plaintiff is entitleď to recover as damages one compensation for all injuries, past and prospective, in consequence of the defendant's wrongful or negligent acts. These are understood' to embrace indemnity for actual nursing, and medical expenses and loss of time, or loss from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction (if he is entitled to recover) for loss of both bodily and mental powers, or for act ual suffering both of the body and mind, which are the immediate and necessary consequences of the injury." And added: "There is no evidence, however, offered that any thing was paid for actual nursing, or any amount was paid for medical attendance. You need not consider these items in making up your verdict, should you arrive at that point." The proposition of law laid down seems to be a verbatim quotation from 3 Suth. Dam. 261, and is sustained by the numerous authorities there cited. Nor upon an examination of the record do we find any ground to sustain the tenth assignment of error. The court, it seems, instructed the jury not to consider those items in making up their verdict, if they should come to that issue. No error. Affirmed. RICHMOND & DANVILLE R. Co. ย. CHILDRESS. (Georgia Supreme Court, April 13, 1889.) Personal Injuries-Physical Examination of Plaintiff-Discretion of Court. -It is within the discretion of the trial court to require the plaintiff, suing for a physical injury alleged to be permanent, to submit to an examination by competent physicians at the instance and at the expense of the defendant in the action, to ascertain the nature, extent, and probable duration of the injury, so as to afford means of proving the same at the trial. By Ga. Code, § 206, every court has power to control, in furtherance of justice, the conduct of all persons connected with a judicial proceeding before it, in every matter appertaining thereto. ERROR from Superior Court, Fulton County. Pope Barrow and Jackson & Jackson for plaintiff in error. Gartrell & Ladson and J. T. Glenn, contra. BLECKLEY, C. J.-Childress, a lad 13 or 14 years of age, recovered a verdict, against the railroad company for $3,500, on account of a personal injury alleged to be perCase stated. manent. The seat of the injury was the chest. The company made a motion for a new trial on several grounds, the fourth being as follows: "Because the court erred in declining to order the examination of Childress by physicians to be appointed by the court on motion of defendant before the jury was impaneled, but after the case was called for trial, for the purpose of determining whether or not he had been permanently injured as claimed, the said defendant offering |