The question presented is whether the trial judge abused his discretion: (1) By refusing to permit cross-examination of the witness called by the court; and (2) by hearing evidence outside the trial in order to determine whether the verdict should be set aside.
It is a tradition of the law that the right to cross-examine is one of the strongest safeguards against mistake and perjury. It is a matter of regret, therefore, the defendant’s counsel was denied the right to cross-examine the witness on whose testimony the court might determine whether it would set the verdict aside. After all, the defendant had a substantial right in the verdict in his favor, Edwards v. Motor Co., 235 N.C. 269, 69 S.E. 2d 550, and it was entirely proper for his counsel to be diligent in his efforts to protect that right.
Although there is no evidence that anything improper took place during the trial, nevertheless the court has power to set aside the verdict as against the greater weight of the evidence. However, it is questionable whether the court should take additional testimony or base its decision only on that which the jury considered.
It is undoubtedly the rule that when a trial court sets aside a verdict in its discretion its action in so doing will not be disturbed in the absence of abuse. The rule contemplates the exercise of a legal, judicial, rather than an arbitrary, capricious discretion. Pruitt v. Ray, 230 N.C. 322, 52 S.E. 2d 876; Francis v. Drug Co., 230 N.C. 753, 55 S.E. 2d 499; *436 Ward v. Cruse, 234 N.C. 388, 67 S.E. 2d 257. Examination of this record fails to disclose error of law requiring a reversal. The order of the Superior Court of Guilford County setting aside the verdict is