Dissenting. — The negligence of appellant’s employees, alleged in the complaint and relied on for recovery, consisted in causing the train-to be run at a danger-our speed against the car, referred to in the foregoing opinion as a “dozer,” causing respondent to be thrown therefrom and injured; in not maintaining a proper lookout on the front of the train as it was being pushed along the track toward respondent; in not maintaining a brakeman to transmit signals between the front of the train and the engine; in not maintaining, on the front ear, an air-hose and valve by means of which the train could be stopped; also that after respondent was knocked off the car the engineer negligently and carelessly failed to apply the air-brakes, by reason whereof respondent was pushed, dragged and rolled along the track, whereby he sustained the injuries to recover damage for which he sued.
Instruction numbered 4, being that first quoted in the foregoing opinion, advised the jury that appellant was responsible for any act, or acts, of negligence of its employees on the train and “if either or any of such employees was guilty of any negligent action or conduct as such employee in the discharge of his duty and employment at the time of the accident the defendant is responsible therefor and the employee’s negligence in respect to the discharge of his duties as such employee of the defendant company upon the said train in question, if any, was the negligence of the defendant.”
The error in this instruction consists in not confining it to acts of negligence embraced within the issues, and which resulted in respondent’s injuries, and the same criticism may be made of instructions numbered 5 and 14, relied on in the foregoing opinion to correct it.
*22The instructions given in this case cannot be sustained when viewed in the light of the authorities cited in the opinion in support of them. The entire charge, when read and considered together, permitted the jury to take into consideration and to base its verdict on any act, or acts, of negligence of any employee, or employees, of appellant who were working on the train in question, whether or not such acts were relied on by respondent for a recovery, or’ such negligence caused or contributed to his injuries.
The remark of the presiding judge, reflecting on the credibility of appellant’s witness, McGraw, was prejudicial error. The jury could not do otherwise than draw the inference therefrom that his honor was convinced, from the demeanor of the witness, he was biased and prejudiced and that his testimony, with respect to his feeling toward respondent, was false.
After finding the conduct of the trial judge to be erroneous the majority of the court observes: “Considering the portion of the record quoted above, in connection with the entire record in the ease, it is not reasonably probable that the remark of the court affected the verdict, or deprived appellant of any substantial right.” This is important, if true, but I am unable to find anything in the record which tends to correct the error, nor have I been able to ascertain what is relied on to render the remark harmless, though I have earnestly sought such information where, if it exists, it ought to be found.
The danger in that remark, coming from the source it did, is apparent when viewed in the light of the entire instruction, a small portion of which has been quoted in the opinion apparently “in mitigation of damages.” “You are the exclusive judges of the credibility of the witnesses and of the weight to be given to the testimony of each witness. You may take into consideration the interest, bias or prejudice of any witness, if such interest, bias or prejudice exists, the probability or improbability of the testimony, and any and all other facts and circumstances in evidence which in your ' judgment would add to or detract from the credibility of *23the witnesses or the weight of their testimony. If there is a conflict in the testimony you must reconcile it, if you can. If not, you may believe or disbelieve any witness or witnesses, according as you' may or may not think them entitled to credit. If you believe that a witness has knowingly testified falsely as to any material matter, you are at liberty to disregard the entire testimony of such witness, except in so far as he may be corroborated by other credible evidence.”
By the erroneous remark the presiding judge told the jury McGraw showed very strongly he “had feeling against Kinzell,” although the witness had testified to the contrary. In the instruction the jury was told it might take into consideration the bias and prejudice of a witness as a fact which would tend to detract from his credibility, and if there was a conflict in the testimony which it could not reconcile, it might believe or disbelieve any witness, according as it might think him entitled to credit. Furthermore, if it believed a witness had knowingly testified falsely as to any material matter (and the jury was in possession of the views of his honor on this point with respect to the witness McGraw), it was at liberty to disregard the entire testimony of such witness, except in so far as he might be corroborated by other credible evidence.
The supreme court of Iowa, in State v. Philpot, 97 Iowa, 365, 66 N. W. 730, said: “The rule seems to be well settled that if the judge, during the progress of the trial, makes remarks in the presence of the jury, which would be erroneous and prejudicial had they been embodied in the formal charge given by him to the jury, it will entitle the losing party to have a verdict to which they might have contributed set aside.”
The Texas court of criminal appeals, in Gribble v. State (Tex. Cr.), 3 A. L. R. 1096, 210 S. W. 215, said: “The fact that a statement of the court as to the importance or unimportance of testimony is stated from the bench would often make it no less hurtful than if contained in the written charge. The trial judge is to the jury the Lord’s Anointed; *24his language and his conduct have, to them, a special and peculiar weight.”
The rule with respect to prejudicial remarks by the presiding judge in the presence of the jury may be gleaned from the following quotations from the opinions of justices of our court written during the quarter of century last past:
“There can be no question but that the remarks of the court were not only improper, but were manifestly prejudicial to the defendant, and constitute reversible error.” (State v. Taylor, 7 Ida. 134, 61 Pac. 288.)
“It is, a well-settled principle that trial courts should be guarded from any expression in the presence or hearing of the jury that can in any way be construed into an expression of their views on any evidence that may be before the jury.” (State v. Shuff, 9 Ida. 115, 72 Pac. 664.)
“The trial court must avoid remarks that tend to give to the jury the impression that counsel is asking foolish questions and trifling with the court, and thus create prejudice.” (Nave v. McGrane, 19 Ida. 111, 113 Pac. 82.)
“It is a well-recognized fact that jurors as a rule are quick to discern the opinion of the trial court as to the guilt or innocence of a defendant, or his opinion as to the truthfulness of a witness, and if a juror concludes from the act or suggestion of the court that it disbelieves a witness, it is sure to have a prejudicial effect against the litigant calling the witness, and especially is this true where public feeling and prejudice run rampant against a defendant charged with a horrible crime.” (State v. Clark, 27 Ida. 48, 146 Pac. 1107.)
Criticising the conduct of a trial judge in discussing in his instructions the credibility of the defendant as a witness, it is said: “We think the better rule for the court to follow is not to single out any special witness personally and burden his testimony with ,any suggestions which might indicate to the jury that in the opinion of the court such witness was liable to testify falsely.....And the giving of such instruction cannot be regarded as otherwise than erroneous.” (State v. Rogers, 30 Ida. 259, 163 Pac. 912.)
(June 9, 1920.)'The testimony of McGraw contradicted that of respondent as to the speed of the train and as to what the latter was doing just prior to the accident, and, if believed, should have, and almost certainly would have, prevented the verdict complained of.
Since those responsible for the foregoing opinion have found the remark of the presiding judge to be erroneous, because it reflected on the credibility of the witness and detracted from the weight of his testimony, and since they are unable to find, or at least to point out, wherein it was cured, and in view of the importance of that testimony, it is safe to say a justifiable reason for the conclusion announced does not exist.