The opinion of the Court was delivered by
Mr. Chief Justice McIver.The plaintiff brings this action against the defendant, a municipal corporation, to recover damages for certain injuries done to his property— his carriage and harness — by reason of the neglect or mismanagement of the servants or agents of defendant. It appears that on the 11th of November, 1896, the agents of defendant were engaged in constructing a pavement or sidewalk, dedicated for that purpose by the adjoining proprietor, on a strip of land adjoining one of the public ways of the city of Sumter, and, with a view to protect the sidewalk from being encroached upon by vehicles, a line of posts were planted, one of which, as alleged by plaintiff, was planted in a carriage rut, which had been made by vehicles passing along said public way. On the day above named, late in the afternoon, the plaintiff’s son, accompanied by another gentleman and two ladies, drove the plaintiff’s carriage along said public way,' out into the country, to attend a wedding. Returning to the city the next morn*459ing, about an hour before daylight, while it was still quite dark, the carriage collided with the post alleged to have been driven down in the old carriage rut, and was considerably injured.
The main question in the case was, whether the injury complained of was caused by the negligence of the defendant; and upon that question testimony was adduced both pro and con., and upon the close of the testimony the Circuit Judge charged the jury as set out in the “Case,” a copy of which should be incorporated in the report of this case. The jury having rendered a verdict in favor of the plaintiff, and judgment having been entered, the defendant appeals upon the several grounds set out in the record, which need not be stated in detail here, as, under the view we take, the main and controlling question presented by the appeal is, whether the Circuit Judge, in his charge, violated the constitutional mandate forbidding him to charge on the facts, sec. 26, art. V., of the present Constitution, which reads as follows: “Judges shall not charge juries in respect to matters of fact, but shall declare the law.” It must be remembered that the former provision upon this subject, in the Constitution of 1868, sec. 26 of art. IV.', allowed greater latitude to the judges than is now permitted; for then the judge was allowed to “state the testimony,” but now he is not allowed to do so. In construing this constitutional provision, as declared in the Constitution of 1868, it was said, in the case of State v. James, 31 S. C., at page 235, that, in stating the testimony as then allowed, “the judge must be careful to avoid expressing, or even intimating, any opinion as to the facts, and that if he does so, whether intentionally or unintentionally, a new trial must be granted. Under our Constitution, the jury are the exclusive judges of the facts, and the true meaning and real object of the section of the Constitution above quoted is, that they must be left to form their own judgment, unbiased by any expressions, or even intimations, of opinion from the Judge.” If this be the proper construction of the *460former constitutional provision upon this subject, it must necessarily apply with at least equal, if not greater, force to the present constitutional provision, which is much more restrictive in its terms. But this whole matter has been so fully considered, and the authorities so elaborately collated, in the recent case of Norris v. Clinkscales, 47 S. C., 488, that it is not necessary to do more than to refer to that case. Booking at the question now presented, in the light of these authorities, we observe, first, that it is well settled that the question of negligence is a mixed question of law and fact; what is the meaning of the term “negligence” being a question of law to be passed upon by the Court, and whether the facts proved in a given case are sufficient to show negligence, as defined by the Judge, being a question of fact exclusively within the province of the jury. Bridger v. Railroad Company, 25 S. C., at pages 30, 31. For, as is there well said by the late Chief Justice Simpson, “The law, however, does not state what facts proved will show the absence of ordinary care. It could not do so as applicable to every case which arises. The cases involving this question are so different in their facts, so various, so complicated, and arising under so many different circumstances, that it would be utterly impossible to lay down any general principle of law by which every special case could be measured and tested as to the fact of negligence, and which would enable a judge to say to the jury, as matter of law, such and such facts show the absence or presence of ordinary care.” Hence, whenever a Circuit Judge undertakes to tell the jury that if a certain fact, or series of facts, have been proved to their satisfaction, then there would be negligence, he passes beyond the boundary line which separates the province of the judge from that of the jury, and invades the province of the jury by expressing to them his opinion upon a material question of fact in the case, to wit: whether such fact or facts are sufficient to show the want of ordinary care, whether there was negligence. When, therefore, the Circuit Judge said to the jury in this case, *461unintentionally, no doubt, “If the city place obstructions there, not giving any notice, and he sustained damages, it would be an act of negligence and mismanagement,- and the city would be responsible,” he invaded the province of the jury, and expressed his opinion as to a material question of fact; and for this reason “a new trial must be granted.”
It is contended, however, that this error was obviated by the fact that the Circuit Judge, in several other portions of his charge, told the jury that all the questions of fact were exclusively for them. But this view cannot be accepted; for if, as we have seen, the real object of this constitutional provision was to leave all questions to the jury to be decided according to their own judgment, unbiased by any expression or even intimation of opinion from the Judge, it is manifest that such object would be defeated, if a Circuit Judge should be allowed to express his own opinion upon any material question of fact, and then undertake to wipe out the impression made upon the minds of the jury by telling them that all questions of fact were for them. The impression having been once made, it would be very difficult, if not impossible, thus to obliterate it, and the result would be that the jury would be, more or less, influenced by an opinion coming from so high a source as an intelligent Judge, whose mind had been trained to weigh testimony and determine its force and effect, and thus the very object of the constitutional provision, to preserve the minds of the jury from being in any way influenced by the opinion of the Judge as to a question of fact, would be defeated. This view is fully supported by authority. State v. White, 15 S. C., 381; States Smalls, 24 S. C., 591; recognized and followed in the recent case of Norris v. Clinkscales, 47 S. C., at page 524. See also Hopt v. Utah, 110 U. S. Rep., 582-3.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for a new trial.