dissenting.
In this case the sum assessed by the jury as damages is large and the evidence is so conflicting that had a verdict been rendered for appellant it could not be set aside on the ground that it was contrary to the evidence. Such being the case, I can not concur in the view that the remarks of the court, excepted to by appellant’s counsel, did not create an impression on the minds of the jury prejudicial to the appellant, which affected their verdict. It must be admitted that the remarks of the court were of a character well calculated to produce on the minds of the jurors an impression unfavorable to the appellant, and it can not, in accordance with reason, be presumed that they did not produce the effect which they naturally tended to produce.
Neither can I concur in the view that the instructions, however favorable for appellant, removed the unfavorable impression produced by the remarks of the court. It can not be said with certainty that the instructions had that effect. It must, therefore, be admitted that they may not have had that effect. It has been held that the erroneous admission of evidence prejudicial to a party could not be cured by an instruction. Railroad Co. v. Winslow et al., 66 Ill. 219; Fire Ins. Co. v. Rubin, 79 Id. 402.
To say in such a case as the • present that the remarks were made to counsel and were not in the form of an instruction to the jury is, in my judgment, a mere evasion, and does not touch the substance of the matter.
To be reversible error it is not necessary that the remarks should be addressed to the jury in the form of an instruction. Appellate Procedure, by Elliott, top p. 618; 1 Thompson on Trials, Secs. 218, 219; McIntosh v. McIntosh, 79 Mich. 198.
Judgments have been reversed on account of improper remarks made by counsel to the jury in argument. That improper remarks tending to influence the jury, made by the court in the presence and hearingof the jury, are likely to have much more influence than such remarks made by counsel, is too obvious to require argument.
To hold, in such a case as the present, that the remarks complained of were not so prejudicial to the appellant as to warrant a reversal of the judgment is, in my opinion, to establish a dangerous precedent.