#### Omaha Brewing Association v. Christian Bullnheimer.

Filed April 6, 1899.

No. 8824.

1. Master and- Servant: Action for Personal Injuries: Mistreatment of Servant: Opinion of Third Person: Court’s Examination of Witnesses. Assignment of error of the admission of certain testimony examined, and *held*"well taken.

2. Instructions: Exceptions: Review. There must be an exception to an instruction when given, to obtain a review of the alleged error of such action.

Error from the district court of Douglas county. Tried below before Scott, J.

*Reversed.*

*Hamilton■*cG *Mawwcll,*TF. *TV. Morsman,*and *George B. Lalce,*for plaintiff in error.

*■Edward TV. Sim,eral*and *Weaver & Giller, contra.*

Harrison, C. J.

In an error proceeding to this court the brewing association seeks a reversal of a judgment of the district court of Douglas county in favor of the defendant in error in an action wherein he recovered a sum as the damages for personal injuries alleged to have been suffered by him by reason of the negligence of the association. In the petition. there was pleaded the corporate capacity and existence of the association, also that defendant in error was, and had been prior to March 12, 189-1, “an engineer by trade,” and as such employed by the association. For further statements we now quote from the petition:

> “Plaintiff further says that on the 12th day of March, 1891, while employed by said defendant as aforesaid, that Gottlieb Storz, the president of said defendant corporation, ordered this plaintiff to go into the third cellar of said defendant’s building for the purpose of doing some work upon the brine pipes in said cellar.

> *388“4. That prior to said 12th day of March, 1894, by orders of said defendant, there had been a hole cut through the floor of said third cellar about eight feet square, which said hole opened into the second cellar about eighteen feet below that of the third cellar, and that through negligence and carelessness of the said defendant, its agents, servants, and employés said opening was left wholly and entirely without protection and unguarded and uncovered by railing of any kind or description.

> “5. The plaintiff further states that said third cellar is at all times dark and unprovided with light, and plaintiff was compelled to carry a lighted candle, and that-while examining the brine pipes which are attached to the sides and ceiling of the third cellar wall, and through no carelessness or negligence on his part, and not knowing of the existence of the hole in the floor of said cellar, as aforesaid, and while walking along the floor of said cellar, this plaintiff' stepped into said hole and fell through the same, a distance of about eighteen feet, into the cellar below.”

There were further allegations relative to the injuries received by the defendant in error, their character, etc., and the suffering endured by him. Issues were joined, and a trial thereof resulted, as we have hereinbefore indicated, in a judgment against the association.

One question raised and argued for the plaintiff in error is of the admissibility of a portion of the testimony of the defendant in error, who, in answer to an interrogatory in regard to what had been stated to him by Mr. Haubens, who, it was testified by defendant in error, was one of the corporation, assisted in the transaction of its business, was an officer of the association, stated that in a conversation between them as to what had caused Bullnheimer to quit the service of the association “I said to Mr. Haubens the way I get treated from Mr. Storz I can hardly stand it any longer. I stood it so long. I done my best, all I could, all I could do for him, and then Mr. Haubens said, ‘It is a shame you get treated that way; *389you been working so long for tbe company and always give satisfaction;’ and he says, ‘So far as,’ be says, ‘I should be paid if I should work or not.’ I could earn my money if I only was around.” This testimony was in relation to a business matter or transaction between tbe defendant in error and tbe association which transpired subsequent to tbe alleged injuries, and tbe witness testified of tbe stated opinion of another party relative to tbe shameful treatment by tbe association of tbe defendant in error in such after affair. Tbe opinion of tbe conduct of tbe association or its officer or officers, as stated to have been expressed by Mr. Haubens, whether so voiced by him or any other person, and while an officer or agent of tbe association or wholly unconnected with it, was wholly incompetent and immaterial to tbe issues then on trial and Avas well calculated to prejudice tbe rights of plaintiff in error; hence tbe admission of tbe testimony was erroneous.

It developed in tbe testimony that prior to tbe time tbe bole in tbe floor through which tbe defendant in error fell was made some person bad marked on tbe floor, with chalk, lines which were to be followed in sawing and taking out so much of tbe flooring as was necessary, and there bad been an attempt during tbe course of tbe trial to show that tbe defendant in error bad given directions for tbe chalk-marks and for making tbe bole in tbe floor. Immediately following an interrogation to defendant in error by bis counsel in relation to tbe chalk-marks on tbe floor and tbe former’s probable knowledge of them or conversation about them with tbe carpenter who was to observe them in tbe removal of the portion of tbe floor outlined by them, which question was objected to by counsel for tbe association, tbe presiding judge, after overruling tbe objection, interrogated tbe witness, and connectedly there were other occurrences, of all of which tbe following is tbe record:

I never made a chalk-mark and never was asked to make one.

> *390The Court: Did you know where the chalk-marks were?

Objection by the defendant to the question propounded, as there is no evidence here tending to show that he knew anything about chalk-marks on the floor where this hole was cut.

> The Court: You may state to the jury what the fact is in regard to that, whether you knew anything about it or not.

Objection by the defendant, as it is not competent for the court to examine a witness in the case.

> The Court: It is competent for the court to see that justice is done. I don’t propose to sit here like a Stoughton bottle and leave things untouched. If a point is overlooked, I px-opose to call it oxxt.

Defendant excepts.

> A. Tkex*e wasn’t any such thing.

> *X* *X* w -X* if if if

> The Court: Gentlemen of the jury, when on yesterday the plaintiff was upon the witness-stand and a question was put to the witness by the court as to the chalk-marks testified to, the question was objected to by the defendant’s counsel; thereupoxx was a colloqixy between the court and couxxsel in regard to the matter, and I wish to say to you that whatever was said by the court was not for you, or to you, but for counsel and to counsel. It was not intended to, nor will yoxx allow it in any manner to, influence you or prejudice yoxx for or against either party to the suit. It was intended solely and alone for counsel, as it was a question of the legal right of the couxh at any time to ask a proper question of a party or a witness upon the stand respecting any point or points involved in the case without first asking penxxission of counsel to do so.

It is argued that the court erred in questioning the witness and in its statements to the jury in answer to the objection which was interposed to its interrogatory. We have stated our views in regard to action of a presiding judge questioning witnesses as follows: “In the matter qf the complaint that the judge of the district court who *391presided during tlie trial of this case took too active a part therein, in that he interrogated the witnesses, etc., we have carefully examined this matter again, and discovered that in a number of instances he asked questions for what plainly appears to have been the purpose of a more clear understanding of the admissibility or non-admissibility of testimony to which an objection had been interposed, that the ruling on the objection, might be correct. Such actions were entirely proper. In a number of other instances the trial judge questioned -witnesses and elicited testimony which bore more or less directly on the main issues. It is undoubtedly necessary that the judge who presides should acquire as full knowledge of the .facts and circumstances of the case on trial as possible, in order that he may instruct the jury, and correctly, to the extent his duty demands, shape the determination of the litigated matters, that justice may not miscarry, but may prevail; and doubtless it is allowable at times, and under some circumstances, for the presiding judge to interrogate a witness. The exact extent or Avlien the exigencies may warrant an exercise of this right are matters which are not capable of very precise statement; but it may be said that the right here in question is one Avhich should be very sparingly exercised, and, generally, counsel for the parties should be relied on and allowed to manage and bring out their OAvn case. The actions of the judge in this respect should never be such as to warrant any assertion that they were with a view to assistance of. the one or the other party to the cause.” *(Bartley v. State,*55 Neb. 294. See, also, prior opinion in the same case, 53 Neb. 348.) Questioning the witness, when considered in connection with the remarks that Avere made by the trial judge, was doubtless error, and that which was prejudicial, in that the jury, or individual jurors, might be induced by it all to conclude that the court had opinions in regard to the rights of the parties which were shadowed forth or indicated, to some extent at least, by its question and language in response to the *392objection thereto; but the court, as we have quoted on the next day, admonished the jury that the matter was wholly one between it and the counsel and not to be considered by the jurors. This admonition was full and complete and must have robbed the prior happenings of any harmful force they may have possessed. *(Bartley v. State,*53 Neb. 348; *Hoover v. State,*48 Neb. 184.)

It is urged that the court erred in giving in charge to the jury instructions numbered 5 and 6. To instruction numbered 5 there was no exception at the time it was given; hence the assignment relative to it must be disregarded. The portion of the one numbered 6 which is claimed to be objectionable is as follows: “But if plaintiff has proved all the other facts necessary to a recovery, and has not shown by his own evidence in making out his case that he contributed to the injury by his own negligence, then your verdict should be for the plaintiff.” Counsel insist that the effect of this was to exclude from the consideration of the jury all the evidence which might have tended to show contributory negligence which was given on behalf of defendant in error, except such as he himself personally gave. There is an inaptness of expression in the language we have quoted which renders it liable to the construction contended for by counsel; to say the least, it involves an ambiguity, and jurors may have interpreted it as does counsel, but, when read in connection with all the other portions of the charge which treated specifically of the same subject-matter of the issues, we doubt whether it can be given the importance as an error attached to it by counsel.

There are several other errors presented which refer to admission and exclusions of evidence to portions of the charge to the jury, and connected therewith a question is argued in which there is involved an attack on the sufficiency of the petition to admit of the litigation herein of one of the issues of which there was testimony and notice in the instructions, but as the cause must be remanded for a new trial, we deem it unnecessary to dis*393cuss these points; if errors, they will probably not occur again. It follows from what has been stated that the judgment must be reversed and the cause remanded.

Reversed and remanded.