#### FRANK CHANCE v. CRYSTAL ICE AND COAL COMPANY.

(Filed 16 September, 1914.)

Courts — Expression of Opinion — Credibility of Witness — interpretation of Statutes.

Where a material witness for a party to an action has been asked a question which was withdrawn upon objection, and to his answer to the next question asked him adds the testimony called for in the question asked and withdrawn, it is reversible error for the judge to tell the jury that the objectionable part of the answer was stricken out, and to add, “This witness is too smart,” for the added portion of the instruction is an expression of opinion by the judge upon the credibility of- the witness, and is forbidden by statute.

Appeal by defendant from Ferguson, J., at February Term, 1914, of PasquotaNK.

This is a civil action, tried upon these issues:

1. Was the plaintiff injured by negligence of defendant, as alleged in the complaint? Answer: Yes.

2. Did the plaintiff by his own negligence contribute to his injury? Answer: No.

*496.3. What damage has the plaintiff sustained? Answer: $300.

From the judgment rendered, the defendant appealed.

Aydlett & Simpson for plaintiff.

I. M. Meehins for defendant.

Bkow-N, J".

We do not deem it necessary to discuss the sufficiency of the evidence of negligence, as the case is to be tried again and the evidence may be different from that presented in this record.

The plaintiff testified that he was injured while going into the cold-storage room of the defendant’s plant by stepping upon a plank laid across a nail keg and used as a step. There was much evidence offered both by the plaintiff and the defendant.

W. E. Dunstan, manager of the defendant company, was introduced as a witness in behalf of the defendant. He was asked: “Are theré any steps leading from the cold-storage room to the anteroom now?” This was objected to, and the question was withdrawn. The witness was then asked by the defendant: “Were there any steps there at the time of the injury?” The witness answered: “No; nor none since.” The plaintiff objected to that part of the answer, “nor none since,” and moved to strike it out. The court then interposed and in the presence and hearing of the jury said: “That part of the answer is stricken out; this witness is too smart.” The defendant excepted to the remark of the judge commenting upon the conduct of the witness.

■ This witness appears to have been a very important witness for the defendant, which relied almost entirely upon his testimony to contradict that of the plaintiff. The witness Dunstan not only testified as to facts which he believed would exonerate the defendant from liability, but also testified very materially as to the damage which the plaintiff sustained.

We think that the language of the judge in saying that the witness was too smart, however inadvertent upon the part of his Honor, was an infringement upon the prerogative of the defendant, and we cannot see anything in the record from which we can infer that the witness deserved such a rebuke.

*497We are quite sure that it was not intended to prejudice tbe defendant’s case by tbe able and painstaking judge wbo tried tbis case, but it undoubtedly was well calculated to prejudice tbe jury against that particular witness, and was practically an expression of opinion upon tbe part of tbe judge as to tbe credibility of sucb witness.

Tbe judge,.under our law, is denied from expressing any opinion, or in any way conducting bimself so as to influence tbe findings of tbe jury upon tbe questions of fact. Tbe influence of tbe judge upon tbe jury under our system of practice is very great, and tbe law is careful to see tbat tbat influence is not thrown into tbe jury box adversely to either party.

"While it is tbe duty of tbe jury to take tbe law from tbe court,-it is also tbe duty of tbe judge to so conduct tbe trial that tbe jury may not be influenced in their findings of fact by any opinion tbat may fall from tbe court. Tbis matter has been so fully discussed by Mr. Justice- Walker in Withers v. Lane, 144 N. C., 184, tbat we. deem it unnecessary to say anything further. S. v. Howard, 129 N. C., 584.

For tbe error complained of, there must be a

New trial.