Sea well, J.
(1) The exception to consolidation of the cases for the purpose of trial is without merit. In this State the power of the trial court to consolidate cases for convenience of trial is not confined to cases between the same parties, but extends to cases by the same plaintiff against several defendants and cases by different plaintiffs against the same defendant, where the causes of action grow out of the same transaction and the defense is the same. Abbitt v. Gregory, 201 N. C., 577, 593, 594; McIntosh, Practice and Procedure, 536, 539. The liability of the defendants, if any, to the several plaintiffs in this action grew out of the same alleged negligent acts and the defense is the same. There is no apparent prejudice to the defendants in the consolidation of these actions which might interfere with the discretion of the court in making the order.
(2) "We think there was evidence to go to the jury on the question of negligence of the defendant Thomas, and, on the principle respondeat superior, negligence of his codefendant, the Standard Transportation Company.
It is the practice of this Court to refrain from unnecessary comment on the evidence when the case is sent back for a new trial, but in order that it may be understood we are not forgetful of the conditions upon which negligence may be predicated and that we have given consideration in that respect to the evidence presented, we reproduce here some of the pertinent testimony:
[493]*493Tbe plaintiff F. B. Eobinson testified (E., p. 28) : “It bad been raining a little bit. I was driving not over 20 miles an hour, bad my car under control, and was maintaining a lookout, and driving on my right-hand side. There was an embankment on tbis side of tbe bridge at Holt’s Lake, with guard rails on each side of tbe road, tbe posts being about 6 inches square and heavy wire nailed to them.”
Mrs. Yanee Hudson, a plaintiff, testified (E., p. 44) : “Mr. Eobinson’s car was not zigzagging, be was driving carefully and slowly on his side of the road. He was over on bis right side of tbe road over tbe center line at tbe time of tbe collision.”
Mrs. Annie Blackburn, witness for tbe plaintiff, testified (E., p. 45) : “Mr. Eobinson was driving bis car 20 miles an hour, bad it under proper control, and on his right side of the road, immediately before and at the time of the wreck.”
An inference may be drawn from tbis evidence, considered in tbe light most favorable to tbe plaintiff, that plaintiff’s car was driving in its proper lane to tbe right of the center line of tbe road; and since there was a collision between it and defendant’s truck, a corollary inference may be drawn that tbe truck was being driven partially to its left of tbe center line, and encroaching on tbe lane of oncoming travel.
Tbe defendant J. J. Thomas testified, referring to tbe oncoming Eobinson car: “. . . be got to about fifteen feet of tbe bridge when bis two right-hand wheels ran off tbe pavement, and when be pulled his car back on tbe pavement, it turned to tbe left on tbe pavement and skidded across tbe road directly in front of me. At that time I was about half way across tbe bridge. “His car skidded across, and I turned as short as I could to avoid bitting him bead-on.” . . . “To avoid bitting tbe car bead-on, I undertook to run around it.” (E., pp. 49, 50.)
Tbe evidence is contradictory, of course, but that is not for tbis Court. Tbe effect of this evidence must be judged by tbe statute and well considered opinions. Section 10, chapter 148, Public Laws of 1927; Micbie’s Code of 1935, section 2621 (53), reads as follows: “Meeting of vehicles. — Drivers of vehicles proceeding in opposite directions shall pass each other to tbe right, each giving to tbe other at least one-balf of tbe main traveled portion of tbe roadway as nearly as possible.” James v. Coach Co., 207 N. C., 742, 178 S. E., 607; Shirley v. Ayers, 201 N. C., 51, 53, 158 S. E., 840.
Upon tbe question of respondeat superior, tbe defendant Thomas testified (B., pp. 49, 51)': “I was working for Standard Transportation Company, and driving tbe truck that was in tbis accident on Thanksgiving Day, 1935. ... I bad taken a load up tbe road beyond Smitbfield. ... I unloaded in Ealeigb that morning.” Tbe evidence shows that Thomas was driving an oil tank car, of tbe trailer type, [494]*494employed in transporting oil for tbe defendant corporation, and was returning after unloading at Raleigb. We think an inference might be drawn from this evidence that Thomas was at the time “about his master’s business.”
(3) But, nevertheless, the evidence both with regard to negligence of Thomas and the liability of both Thomas and the Transportation Company therefor, was a question for the jury, and the correctness of the charge to the jury has been challenged by pertinent exceptions, and these questions must be considered.
The defendant Transportation Company complains that the instructions to the jury did not comply with the provisions of Consolidated Statutes, section 564, requiring that the judge “shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon,” in that nowhere in the charge was the jury instructed on the doctrine implied in the phrase respondeat superior, or the principle of agency on which the law imputes to the master the negligence of the servant.
In this case the Transportation Company could not be held liable for the negligence of Thomas, in the absence of evidence tending to show that the latter was at the time of his negligent act or omission both in the employment of the Transportation Company and in the performance of some service connected with such employment — that is, about his master’s business.
There is no admission as to the agency, and in instructing the jury the court cannot assume it to exist. The evidence tending to show the agency is important, and the law applicable to it equally so, and neither is of such a simple nature as to be considered self-explanatory, dispensing with an instruction; Craig v. Stewart, 163 N. C., 531, 79 S. E., 1100; Duckworth v. Orr, 126 N. C., 674, 677, 36 S. E., 150; or involving a mere subordinate elaboration requiring a prayer for special instruction after substantial compliance with the statute, as in S. v. Ellis, 203 N. C., 836, 167 S. E., 67; Gore v. Wilmington, 194 N. C., 450, 140 S. E., 71; Murphy v. Power Co., 196 N. C., 484, 146 S. E., 207, and similar cases. The liability of the master, arising through the agency of the servant, is a substantive feature of the case, as to which a proper instruction declaring and explaining the law is mandatory, and the omission of such instruction must be held for reversible error. Nichols v. Fibre Co., 190 N. C., 1; Headen v. Transportation Co., 211 N. C., 639.
(4) The defendant J. J. Thomas also complains that the provisions of the cited section — C. S., 564 — were not observed in his behalf, since nowhere in the record is attention called to the fact that he is one of the defendants; and for this reason the evidence in his behalf and the contentions thereupon did not, with certainty, receive the benefit of that [495]*495explanation of the law which is required by the statute.
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Sea well, J.
(1) The exception to consolidation of the cases for the purpose of trial is without merit. In this State the power of the trial court to consolidate cases for convenience of trial is not confined to cases between the same parties, but extends to cases by the same plaintiff against several defendants and cases by different plaintiffs against the same defendant, where the causes of action grow out of the same transaction and the defense is the same. Abbitt v. Gregory, 201 N. C., 577, 593, 594; McIntosh, Practice and Procedure, 536, 539. The liability of the defendants, if any, to the several plaintiffs in this action grew out of the same alleged negligent acts and the defense is the same. There is no apparent prejudice to the defendants in the consolidation of these actions which might interfere with the discretion of the court in making the order.
(2) "We think there was evidence to go to the jury on the question of negligence of the defendant Thomas, and, on the principle respondeat superior, negligence of his codefendant, the Standard Transportation Company.
It is the practice of this Court to refrain from unnecessary comment on the evidence when the case is sent back for a new trial, but in order that it may be understood we are not forgetful of the conditions upon which negligence may be predicated and that we have given consideration in that respect to the evidence presented, we reproduce here some of the pertinent testimony:
[493]*493Tbe plaintiff F. B. Eobinson testified (E., p. 28) : “It bad been raining a little bit. I was driving not over 20 miles an hour, bad my car under control, and was maintaining a lookout, and driving on my right-hand side. There was an embankment on tbis side of tbe bridge at Holt’s Lake, with guard rails on each side of tbe road, tbe posts being about 6 inches square and heavy wire nailed to them.”
Mrs. Yanee Hudson, a plaintiff, testified (E., p. 44) : “Mr. Eobinson’s car was not zigzagging, be was driving carefully and slowly on his side of the road. He was over on bis right side of tbe road over tbe center line at tbe time of tbe collision.”
Mrs. Annie Blackburn, witness for tbe plaintiff, testified (E., p. 45) : “Mr. Eobinson was driving bis car 20 miles an hour, bad it under proper control, and on his right side of the road, immediately before and at the time of the wreck.”
An inference may be drawn from tbis evidence, considered in tbe light most favorable to tbe plaintiff, that plaintiff’s car was driving in its proper lane to tbe right of the center line of tbe road; and since there was a collision between it and defendant’s truck, a corollary inference may be drawn that tbe truck was being driven partially to its left of tbe center line, and encroaching on tbe lane of oncoming travel.
Tbe defendant J. J. Thomas testified, referring to tbe oncoming Eobinson car: “. . . be got to about fifteen feet of tbe bridge when bis two right-hand wheels ran off tbe pavement, and when be pulled his car back on tbe pavement, it turned to tbe left on tbe pavement and skidded across tbe road directly in front of me. At that time I was about half way across tbe bridge. “His car skidded across, and I turned as short as I could to avoid bitting him bead-on.” . . . “To avoid bitting tbe car bead-on, I undertook to run around it.” (E., pp. 49, 50.)
Tbe evidence is contradictory, of course, but that is not for tbis Court. Tbe effect of this evidence must be judged by tbe statute and well considered opinions. Section 10, chapter 148, Public Laws of 1927; Micbie’s Code of 1935, section 2621 (53), reads as follows: “Meeting of vehicles. — Drivers of vehicles proceeding in opposite directions shall pass each other to tbe right, each giving to tbe other at least one-balf of tbe main traveled portion of tbe roadway as nearly as possible.” James v. Coach Co., 207 N. C., 742, 178 S. E., 607; Shirley v. Ayers, 201 N. C., 51, 53, 158 S. E., 840.
Upon tbe question of respondeat superior, tbe defendant Thomas testified (B., pp. 49, 51)': “I was working for Standard Transportation Company, and driving tbe truck that was in tbis accident on Thanksgiving Day, 1935. ... I bad taken a load up tbe road beyond Smitbfield. ... I unloaded in Ealeigb that morning.” Tbe evidence shows that Thomas was driving an oil tank car, of tbe trailer type, [494]*494employed in transporting oil for tbe defendant corporation, and was returning after unloading at Raleigb. We think an inference might be drawn from this evidence that Thomas was at the time “about his master’s business.”
(3) But, nevertheless, the evidence both with regard to negligence of Thomas and the liability of both Thomas and the Transportation Company therefor, was a question for the jury, and the correctness of the charge to the jury has been challenged by pertinent exceptions, and these questions must be considered.
The defendant Transportation Company complains that the instructions to the jury did not comply with the provisions of Consolidated Statutes, section 564, requiring that the judge “shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon,” in that nowhere in the charge was the jury instructed on the doctrine implied in the phrase respondeat superior, or the principle of agency on which the law imputes to the master the negligence of the servant.
In this case the Transportation Company could not be held liable for the negligence of Thomas, in the absence of evidence tending to show that the latter was at the time of his negligent act or omission both in the employment of the Transportation Company and in the performance of some service connected with such employment — that is, about his master’s business.
There is no admission as to the agency, and in instructing the jury the court cannot assume it to exist. The evidence tending to show the agency is important, and the law applicable to it equally so, and neither is of such a simple nature as to be considered self-explanatory, dispensing with an instruction; Craig v. Stewart, 163 N. C., 531, 79 S. E., 1100; Duckworth v. Orr, 126 N. C., 674, 677, 36 S. E., 150; or involving a mere subordinate elaboration requiring a prayer for special instruction after substantial compliance with the statute, as in S. v. Ellis, 203 N. C., 836, 167 S. E., 67; Gore v. Wilmington, 194 N. C., 450, 140 S. E., 71; Murphy v. Power Co., 196 N. C., 484, 146 S. E., 207, and similar cases. The liability of the master, arising through the agency of the servant, is a substantive feature of the case, as to which a proper instruction declaring and explaining the law is mandatory, and the omission of such instruction must be held for reversible error. Nichols v. Fibre Co., 190 N. C., 1; Headen v. Transportation Co., 211 N. C., 639.
(4) The defendant J. J. Thomas also complains that the provisions of the cited section — C. S., 564 — were not observed in his behalf, since nowhere in the record is attention called to the fact that he is one of the defendants; and for this reason the evidence in his behalf and the contentions thereupon did not, with certainty, receive the benefit of that [495]*495explanation of the law which is required by the statute. He points out that the judge’s charge apparently does not seem to concede to him the role of defendant in the case, and entitled to consideration as such, but regards him as an impersonal agency whose only function is to determine the liability of his codefendant, the Transportation Company; with the result that he is held to liability by reason of the use of the plural— “defendants” — in the issue instead of the singular — “defendant”—as employed in the judge’s charge.
An examination of the charge discloses that the judge apparently did not refer to Thomas directly as a defendant. The nearest approach to it was in the opening sentences, “. . . that the injuries sustained by the plaintiffs and each of them was proximately caused by the negligence of the defendant in the operation of a truck by one of its employees; and the defendant in this action” — and, other charges in fact, did not refer to him anywhere by name as defendant. In opening the charge, the court stated that the defendant in each of the five cases was the Standard Transportation Company. In recounting the evidence relating to the circumstances of the wreck and injury to the plaintiffs, Thomas is nowhere referred to by name. In such statements of the contentions as are made and of the law of negligence applicable, the charge not only does not mention Thomas as a defendant, but a reasonable inference from the remarks of the judge would be that he is referring to the Transportation Company, which originally he designated as the defendant in the causes.
We think, as a minimum requirement of judicial investigation, the jury should at all times understand who are the parties to the trial and whose rights are being dealt with and settled by their verdict. The constant reference in the judge’s charge to “the defendant” — using the singular number — at least tended to divert the minds of the jury from the individual to the corporate defendant, and to deprive him of a fair consideration of the evidence in his behalf and of the benefit of an explanation of the law arising thereon as involved in his contentions, since none of them were stated at all except as those of the Transportation Company, his codefendant. Messick v. Hickory, 211 N. C., 531, 535, 191 S. E., 43. In the neglect to declare and explain the law arising upon this evidence as it related individually to Thomas and involving his contentions, we think there was error. Lea v. Utilities Co., 176 N. C., 511, 514; Jarrett v. Trunk Co., 144 N. C., 299; Williams v. Coach Co., 197 N. C., 12 (15), 147 S. E., 435; S. v. Melton, 187 N. C., 481, 482.
We do not regard these exceptions as being “broadside,” since they refer to definite distinguishable features sufficiently pointed out which run throughout the charge.
[496]*496Since tbis case must go back for a new trial, we do not deem it wise to comment on the evidence, as exceptions thereto may not recur on a new trial.
For the errors noted, the defendants are granted a
New trial. Error.