#### POSEY COGDILL v. BOICE HARDWOOD COMPANY.

(Filed 21 December, 1927.)

1. Negligence — Instructions—Proximate Cause — New Trials.

Where there is evidence tending to show that the plaintiff was injured by the negligence of the defendant’s *alter ego*in charge of work in a cut where the plaintiff was engaged in the scope of his employment, by a piece of ice sliding down a mountain slope and striking him, an instruction that does not refer to the question of negligence or proximate cause, is to the defendant’s prejudice and reversible error.

2. Instructions — Statutes—Expression of Opinion — Negligence—Damages.

In an action to recover damages for a permanent” injury alleged to have been negligently inflicted, an expression in the charge as to the *746presumed time the plaintiff would live, and the consequent diminution of his earning capacity, falls within the inhibition of our statute, O. S., 564.

8. *Appeal and Error*— Record—Case.

Where the case on appeal has not been settled by the trial judge, but by agreement of counsel, that appearing in the record will control.

Appeal by defendant from *Staclc, J.,*at May Term, 1927, of Hat-wood.

Civil action to recover damages for an alleged negligent injury caused by a piece of ice sliding down tbe side of a mountain and striking tbe plaintiff as be was at work for tbe defendant in a railroad cut or fill, tried upon tbe usual issues of negligence, contributory negligence and damages, and resulting in a verdict and judgment for plaintiff, from wbicb tbe defendant appeals, assigning error.

*W. B. Francis for plaintiff.*

*Alley & Alley for defendant.*

Stagy, O. J.

There are two exceptive assignments of error appearing on tbe record wbicb make it necessary to remand tbe cause for another bearing.

On tbe issue of negligence tbe jury was instructed as follows:

> “If you find by tbe evidence that be is permanently injured and bis earning capacity has been decreased by reason of bis injury, and if you find bis neck is stiff, permanently stiff, be would be entitled to recover for tbe decreased earning power to make money, if you find that be was injured by tbe piece of ice falling down tbe side of tbe mountain and bitting him on tbe shoulder, and there is evidence to show that it bad snowed previously thereto and that ice and rock were, on account of tbe weather, falling down tbe side of tbe cut or mountain, and that tbe defendant’s foreman was present and saw this condition and knew what tbe conditions were.”

Certainly, unless free from blame himself, tbe plaintiff would not be “entitled to recover” upon tbe facts here stated, and there is no reference in tbe instruction to negligence or proximate cause. In this respect tbe charge is defective. *Hurt v. Power Co., ante,*696.

Again tbe court instructed tbe jury as follows:

> “I believe be said be is 27 years old, and be is presumed to live a certain number of years, and will be compelled to bear that permanent injury and be afflicted by it and bis earning capacity in tbe future will be decreased by reason of that condition.”

*747Appellant contends tbat tbis instruction contains an inadvertent expression of opinion on tbe alleged permanency of plaintiff’s injury. 0. S., 564. While, of course, unintentional on tbe part of tbe learned judge wbo tried tbe case, we.tbink tbe instruction is fairly amenable to tbe criticism made by tbe defendant. *S. v. Hart,*186 N. C., 582, 120 S. E., 345; *Speed v. Perry,*167 N. C., 122, 83 S. E., 176. The error is just one of those casualties which, now and then, befalls tbe most circumspect in tbe trial of causes on tbe circuit. *S. v. Allen,*190 N. C., 498, 130 S. E., 163; *S. v. Kline,*190 N. S., 177, 129 S. E., 417. Indeed, tbe case on appeal was not settled by tbe judge, and it is possible tbat tbe charge, as reported, is not as given, but we are bound by tbe record. *S. v. Harbert,*185 N. C., 760, 118 S. E., 6; *S. v. Wheeler,*185 N. C., 670, 116 S. E., 413.

For tbe errors as indicated a new trial must be awarded, and it is so ordered.

New trial.