Plyler

This is an action for personal injuries suffered by plaintiff while in defendant’s employ. The case was tried with a jury, and a verdict rendered for plaintiff for the sum of $2,500. Judgment was rendered accordingly, and the appeal is from the judgment.

The appellant states at the beginning of his closing brief that “the only question presented on this appeal is: Does *280 section 625 of the Code of Civil Procedure, as amended March 6, 1905 (Stats. 1905, p. 56, c. 62), and which requires a jury to give proper reasons for its verdict, impose a mandatory duty upon the trial judge to submit issues and questions of fact to the jury, whenever requested to do so by either party ? ’ ’ There are other errors alleged as having taken place at the trial, but as appellant relies only on the one that is the refusal of the court to direct the jury to find on certain special issues, we will consider no other.

The defendant -owns and operates a large plant in Solano county for the manufacture of cement, and the plaintiff was a laborer employed in the -buildings and about the said plant. On June 22, 1904, plaintiff was directed, as a part of his duty, to go to a certain elevated platform in the…

I concur in the order affirming the judgment. There can be no doubt that section 625 of the Code of Civil Procedure as amended in 1905 makes it the absolute duty of the court to direct the jury “to find a special verdict in writing upon all or any of the issues,” and to instruct them, “if they render a general verdict, to find upon particular questions of fact,” whenever a written request for such direction or instruction is made. But this is far from saying that the court in the ease at bar was bound to direct the jury to fix upon some particular fact as the sole cause of the injury, or to find upon each ■ evidentiary fact addressed to any of the several issues or questions of fact raised by the pleadings. The general issue, which might have been answered by a general verdict, involved the liability of defendant and the extent of such liability. And the several issues or particular questions of fact involved in this main inquiry, concerning which the court was bound to direct the jury to find specially, must be gleaned from an analysis of the pleadings, and not from a survey of the numerous incidental questions arising from conflicting evidence touching some auxiliary fact.…

This is a petition for rehearing. We see no reason for granting it, and it is therefore denied.

I concur: McLaughlin, J.

I concur in the order denying a rehearing. Upon a comparison of section 625 of the Code of Civil Procedure, as enacted in 1872, with the section as amended in 1905 (Stats. 1905, p. 56, c. 62), I see no substantial difference except that “upon the request in writing of any of the parties,” if a general verdict is rendered, it is made mandatory upon the court to direct the jury “to find upon particular questions of fact”; whereas, the section formerly left it discretionary with the court. I cannot, therefore, see that the amendment has introduced any new practice aside from making it the duty of the court to do what it formerly had the discretion to decline to do. The scope and purpose of the section appear to be unchanged so far as they relate to the “particular questions of fact” upon which the jury must be directed to make written findings. I think it is the right of either party to submit any one single question material to the issue or any of the issues, whether or not he desires to submit other such questions of fact. He is not obliged, in other words, by his proposed questions of fact, to address questions to all the material issues of the case.

*287 Counsel in their…