ON SUGGESTION OF ERROR. We were in error in the statement that the circuit judge erred in refusing to submit the question of contributory negligence. It was submitted to the jury in a proper instruction, and the error was probably caused by turning two pages instead of one at the time of writing the opinion.
However, this does not change the result of the decision. The case must be reversed for other grounds stated in the opinion.
As to the contention in the suggestion of error that this court is without authority to put the lower court in error because of the exclusion by it of the statement signed by the plaintiff, for the reason that the action of the lower court was not made a specific ground of objection in the motion for a new trial, we desire to say that it was not necessary to make a motion for a new trial, nor was the movant confined to the grounds specified. In paragraph 3, rule 6, of this court, it is provided that: "The right of an appellant to obtain a review in this court of any ruling made in the trial court shall not depend, in any wise, upon his having filed in such court a motion for a new trial, or if such motion has been filed, upon the grounds thereof being distinctly specified."
A motion for a new trial is only necessary to bring to the attention of the trial court matters not embraced in the rulings during the trial, as taken down by the stenographer; it being provided, among other things, in section 724, Code of 1930, as follows: "And in and by means of the court reporter's shorthand notes it shall be competent and effectual for the purposes of appeal and all otherwise, to make of the record every part of the proceedings arising and done during the trial, from the opening until the conclusion thereof, including motions *Page 269 so arising to amend the pleadings, except amendments to indictments, and the ruling of the court thereon and all other motions and steps that may occur in the trial, in addition to the oral testimony. And in such a trial, provided objections are duly made and noted, no exceptions need be taken either for the purposes of appeal or otherwise, or if taken shall not be noted, to any ruling or decision of the court, and this provision shall include the rulings of a court on objections to testimony. If any ruling or decision of the court as to any matter arising during the trial appear in the copy of the court reporter's notes, it shall not be necessary to take any exceptions or bill of exceptions."
We are of opinion that the suggestion of error, except as stated, is without merit, and same is overruled.
Suggestion of error overruled.