#### SMITH v. RAILROAD.

(Filed September 11, 1906).

Exceptions and Objections — Briefs—Argument of Counsel.

1. Under Rule 34 of this Court, exceptions appearing in the record, but not stated in the appellant’s brief, are “taken as abandoned.”

2. Objection to the comments of counsel is a matter peculiarly within the discretion of the trial Judge, and his action is not reviewable unless there is gross abuse of the discretion and it appears reasonably probable that the appellant suffered prejudice thereby.

AotioN by W. E. Smith, trustee, against Atlantic Coast Line Railroad Company, heard by Judge B. F. Long and a jury, at the November Term, 1905, of the Superior Court of Halifax. Erom a judgment for the plaintiff, the defendant appealed.

E. L. Travis, Olaude Kitchin and W. E. Daniel for the plaintiff.

Day, Bell & Dunn and Murray Allen for the defendant.

ClabK, C. J.

There are several exceptions in the record, but the only one stated in the appellant’s brief is that which was taken to comments of counsel. The others are therefore “taken as abandoned.” Rule 34, 140 N. C., 666.

*22Objection to the comments of counsel is a matter peculiarly witbin the discretion of the trial Judge, and his action is not reviewable unless there is gross abuse of the discretion and it ajjpears reasonably probable that the appellant suffered prejudice thereby.

In the present case there was merely “cross-firing with small shot,” as was said by the Court in State v. Underwood, 77 N. C., 502. It is not probable that any real injury was done, and we cannot hold that the Judge erred in refusing to interpose. The jury may have been amused or entertained, or otherwise; but crediting them with being men of ordinary intelligence, their verdict was based on the evidence without any effect from this “by-play.”

No Error.