Goehring

In the appeal number 4777, this day decided, we gave a statement of the facts of the case upon which this appeal, brought by the defendant Stjepovich from the order granting the plaintiff a new trial, is based. Reference is hereby made to the opinion filed in that case both for the statement of facts and the errors at law, which apply equally to the present appeal. The instructions considered therein were particularly prejudicial to the defendant Rogers as placing too great a burden upon him as against his joint tort-feasor. The objection to instruction No. 13 which is herein considered was not available to him on that appeal, as he had requested an instruction of similar import.

It is sufficient to add to the errors already noted in the opinion in case No. 4777 that the plaintiff was prejudiced by instruction No. 13, which was given at the request of both defendants separately and which, in effect, advised the jury that, where the plaintiff called the defendants for examination under section 2055 of the Code of Civil Procedure as an adverse party, all testimony adduced upon such examination was binding only upon that defendant then under examination and that all such testimony…