(dissenting). My mind is irresistibly led to the conclusion that the verdict in this case resulted from error of the trial feourt. The issue, as stated in the majority opinion, “involved a sharp dispute of fact.” In such circumstances, it was the duty of the trial judge carefully to avoid any comment, on the evidence that might mislead the jury.
At the close of the evidence for the plaintiff, counsel for the defendant in his opening statement said: “We will show you that McLean, having come into the ownership of the horse, raced him at more races at different times, whether they had been a year, or six months, or two years afterwards, with no attention called to Mr. McLean about mvy interest.” It thus appears that counsel for defendant voluntarily assumed the burden of proving that plaintiff had made no demand upon the defendant prior to the bringing of the suit. No testimony was offered by the defendant in support of this statement, presumably because counsel learned that he was mistaken as to the fact. In the majority opinion, nov mention is made of the foregoing very material circumstances, but the opinion does contain the observation that “it was competent for defendant’s counsel” to comment on the failure of plaintiff to introduce evidence on this point. Erom what affirmatively appears in the record, it is not only a fair, but an almost compelling, inference that counsel for defendant did not indulge in any such comment in his argument of the ease, for the very simple reason that, after giving the jury to understand he would affirmatively prove that prior to the bringing of the suit no demand had been made on McLean, he evidently discovered he was mistaken as to the fact. I say this because it is inconceivable that counsel for defendant, after making such a direct statement to the jury of what he proposed to prove, would have failed to make good his proffer of proof, had the evidence been at hand.
Upon discovering his mistake, therefore, counsel for defendant made no mention of this phase of the case in his argument. Had he attempted to do so, counsel for plaintiff could have replied; but there was no such opportunity for reply by plaintiff’s counsel to the misleading comment of the trial judge. Moreover, the refusal of the trial judge to correct his error, after his attention had been specially drawn to it, well may have caused the jury to yield its recollection of the evidence to that of the judge. His formal statement, that the jury was “not bound to be governed by any statement of the evidence by the court,” did not help matters, especially as this was followed by the very significant statement: “The court has called your attention to some of the important evidence.” In my deliberate opinion, the conduct of the trial judge constituted a serious invasion of the right of the plaintiff to have this issue of fact determined by the jury. The parties were represented by exceptionally able and experienced counsel, *631who were quite capable of presenting the facts to the jury without the aid of the court. Certainly, if any "comment on the evidence was to be made to the jury, the situation rendered peculiarly applicable the rule that such comment should be fair, and not open to a misleading interpretation.
In my view, it was prejudicial error for the court to strike out plaintiff’s answer to the cross-question put to him by defendant’s counsel. The answer was responsive, and should have been permitted to stand. It is not contended, as the majority opinion seems to assume, that the answer would have been admissible as affirmative proof. The contention is that a responsive answer to a cross-question should not be stricken out simply because its purport differs from what was expected.
The judgment should be reversed, first, because of the error already pointed out; and, second, because the failure of 'the court in the circumstances to grant a new trial constituted an abuse of discretion. See Paolucci v. U. S., 30 App. D. C. 222, 12 Ann. Cas. 920, and Mandes v. Midgett, 261 F. 1019, 49 App. D. C. 139.