dissenting.
I am of opinion that the giving of instruction E constituted reversible error. The instruction assumed the existence of a material fact, when there was a direct conflict as to the existence of such fact. The conflicting evidence was entitled to consideration. Upon it a verdict for the defendants could have been based. The province of the jury was invaded.
In Tyler v. C. & O. Railway Company, 88 Va. 389, 13 S. E. 975, 976, Judge Lacy, speaking for this court, ably and clearly set out the rule as follows:
“It is elementary, and is firmly settled in Virginia, that the court responds to questions of law, and the jury to questions of fact. The court must decide on the admissibility of evidence, that being a question of law; but not as to its weight after it is admitted, that being a question of fact. McDowell v. Crawford, 11 Gratt. (52 Va.) 377. The decided cases evince a jealous care to watch over and protect the legitimate powers of a jury. They show that the court must be very careful not to overstep the line which separates law from fact. They establish the fact that when evidence is parol, any opinion as to the weight, effect, or sufficiency of the evidence submitted to the jury, any assumption as a fact as proved, will be an invasion of the province of the jury. Barton’s L. Pr. 214, and cited cases; Baring v. Reeder, 1 Hen. & M. (11 Va.) [154] 174; Moore v. Chapman, 3 Hen. & M. (13 Va.) [260] 266; Fisher’s Ex’r v. Duncan & Turnbull, 1 Hen. & M. (11 Va.) [563] 576 [3 Am. Dec. 605]; Whitacre v. M’Ilhaney, 4 Munf. (18 Va.) 310; M’Rae v. Scott & Saunders, 4 Rand. (25 Va.) 463; Cornett v. Rhudy, 80 Va. 710.
“For making observations or instructions to the jury as to the weight to be given by them to any part of the testi*59mony or the whole evidence the cause may be reversed and a new trial awarded. Barton’s L. Pr., supra; Davis v. Miller, 14 Gratt. (55 Va.) 1; Hopkins v. Richardson, 9 Gratt. (50 Va.) [485] 486.”
In Skeen v. Belcher, 128 Va. 122, 104 S. E. 582, this principle was followed. There the trial judge instructed the jury in such a manner as to convey his opinion of the evidence. There was a direct conflict of fact, and it was held that the expression of the judge’s opinion was improper.
Likewise in Jenkins v. Commonwealth, 132 Va. 692, 111 S. E. 101, 25 A. L. R. 882, it was held that an instruction which assumed a fact as proven, where there was a conflict, was reversible error, even though the jury was told in the same instruction that the contradictory evidence might be considered.
As I understand the doctrine of harmless error, it is designed to support a verdict or judgment only when, in spite of the error committed, no other judgment could have been properly rendered.
“It is also well settled that if a misdirection or other mistake of the court appear in the record, it must be presumed that it affected the verdict of the jury, and is therefore a ground for which the judgment must be reversed, unless it plainly appears from the whole record that the error did not, and could not, have affected the verdict. 4 Minor’s Inst. (4th Ed.) 937; Kincheloe v. Tracewells, 11 Gratt. (52 Va.) 587, 588; Danville Bank v. Waddill, 27 Gratt. (68 Va.) 448; Edmunds v. Harper, 31 Gratt. (72 Va.) 637, 644, 645; Richmond Railway & Electric Co. v. Garthright, 92 Va. 627, 631, 24 S. E. 267 [32 L. R. A. 220, 53 Am. St. Rep. 839], and cases there cited.” Kimball & Fink v. Borden, 95 Va. 203, 28 S. E. 207.
In 5 C. J. Secundum, under the title of Appeal and Error, and relating to instructions, it is said, section 1766: “An instruction which improperly assumes the existence of a material fact is a material error unless it appears that the party complaining was not prejudiced.”
*60It is only when the facts assumed are undisputed or admitted that the jury ought to be told the consequences resulting therefrom.
Whether or not an erroneous instruction misleads the jury, is a question which belongs entirely in the realm of conjecture. The test is not solely whether the error actually affected the verdict, but rather whether it might have affected it.
In all other respects, I concur in the majority opinion. However, for the error admitted in the majority opinion, I am of opinion that the judgment should be reversed and the case remanded for a new trial under proper instructions and in accordance with the rule we have heretofore followed.
The plaintiff invited the error by asking for the instruction. She will have lost none of the rights to which she is entitled, if she is required to submit to a fair and impartial trial under the law. The case is close and doubtful, and this adds to the reasons requiring a reversal because of the erroneous instruction.