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 *280section 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 upper part of one of the buildings to perform certain work, the character of which he did not know until his arrival at said platform. “The -only means of ascending to, and descending from, said platform was to pass over and across a plank walk about fifteen feet long and three feet wide, and extending and suspended over a cement floor nineteen feet below said walk, thence up a ladder standing perpendicularly, about ten feet long, to said platform; that said walk had no rails, guard, or protection of any kind on either side thereof.” The complaint then alleges the unsafeness of said platform, walk, and means of ascending and descending, etc., and then continues: “And immediately after plaintiff had arrived at said platform, and before being informed of the exact character of the work he was to perform, and while plaintiff was in the exercise -of all due care and skill, and without any negligence on his part, defendant carelessly and negligently caused and suffered a great quantity of dense smoke to arise and -envelop the space in and about said plank walk and said ladder and platform and the space in and about which plaintiff was standing, the- said smoke rendering said space .... dark and impenetrable to sight, and making it impossible for plaintiff to see, and causing partial suffocation of plaintiff and rendering it dangerous to his life to remain on said platform; that plaintiff, by reason of said darkness and danger occasioned by said smoke, endeavored to descend from said platform,- and did descend said ladder and was in the act of stepping on said plank walk to escape, said danger from said smoke, *281when, by reason of said darkness and partial suffocation . . . . and by reason of the absence of rails, guards, or other protection on said walk, plaintiff fell .... to the said cement floor beneath said walk, a distance of nineteen feet,” and received the injury, to recover for which this suit was brought. -
Before the defendant offered any evidence, he handed to the judge of the court the following: ‘ ‘ The court is hereby respectfully requested to direct the jury to find a special verdict in writing upon the following issues in this ease, to wit: First. Was the accident and injury complained of caused by the failure of defendant to provide rails or guards on the plank walk described in the pleadings and evidence ? Second. Was the accident and injury complained of caused by a great volume and quantity of dense smoke arising and enveloping the space in and about the plank walk and ladder described in the pleadings and evidence? Third, if you answer the last interrogatory in the affirmative, was the smoke alone of such a character as to threaten plaintiff with great bodily injury, or justify him in really believing that he was threatened with such great bodily injury as to require prompt action on his part to escape such injury ? Fourth. Did plaintiff see, and know, when he first went upon the plank walk described in the pleadings and evidence, that there were no rails or guards on said plank walk?” The record shows that, before making the request of the judge, the defendant did not show said special findings to the attorney for plaintiff, Mr. Devlin; that five minutes before the argument of the case to the jury, the judge did show Mr. Devlin these special issues, and he thereupon objected to them being presented to the jury because of their uncertainty and ambiguity, and because contradictory in form, and further because the jury could not render a verdict on the general issues and find on the special issues offered. Mr. Wilson, counsel for defendant, then rose and stated: “We take exception to the action of the court in submitting to counsel the special issues presented to the court on behalf of defendant, and we assert that, under the law, it is the duty of the court to submit to the jury all special issues that may be presented, and we also object to the action of counsel in presenting before the jury any objections to the special interrogatories that have been pre*282sented to the court.” The cause was then argued and the court instructed the jury, but refused to direct the jury to find special verdicts as requested by defendant.
Defendant made the request for these special findings under the provisions of section 625 of the Code of Civil Procedure, as amended in 1905. Prior to said amendment, the court might, or might not, direct the jury to find special verdicts, for the words “may direct” were used. By the amendment of 1905 the word “may” was changed to “must,” and reads: “In all eases the court must, upon the request in writing of any of the parties, direct the jury to find a special verdict' in writing upon all or any of the issues.” It is contended by appellant that, as amended, the court has no discretion, but must direct the jury to find specially. The court is not bound to prepare such special issues, but “when requested in writing” must be taken to mean interrogatories prepared and set forth in such writing. But even then, I apprehend the other side would have a right to offer amendments to such special interrogatories or special issues, and it would be the duty of the court then to settle the same and make them conform in an intelligent way to the real issues in the case. Unless the questions the party desires the jury to answer as special verdict are questions and issues pertinent to the real issue in the case, he has no right to have the jury directed to answer them, and, as in all other questions submitted to the jury, it becomes the duty of the court to first determine whether it is pertinent to the issue the jury is called to try. Were it otherwise, and had the legislature intended to have taken away all discretion of the court of saying whether matters parties may ask to have submitted to the jury are legitimate and pertinent, then a defendant in a damage suit with no legitimate defense could have such matters submitted to the jury as would so befog the minds of the jurors as to make it impossible to have a verdict that would stand. The legislature never intended to take away such discretion. Under the section as it now stands, the court must submit the special issues formulated in writing by either party when the same are within the issues and subservient of the general issue in the case.
Now, as to the special issues asked in this case. The complaint alleges that the fall which caused the plaintiff’s injury *283was caused by said smoke and by reason of the absence of rails, guards or other protection on said walk. The injury was caused by both the smoke and the fact that there were no guards on the walk. Just how much each contributed to the fall is beyond the power of man to tell. In the first place, having such a walk nineteen feet above the ground is an element of danger, but probably when the vision is in no wise blinded one might not fall. The smoke was only dangerous simply causing partial suffocation, but when it darkened the vision, the fact that defendant was standing on a plank walk nineteen feet high and only three feet wide, and with no guards and no protection from the danger of falling, it, in conjunction with the smoke and the smoke in conjunction with the said walk, made the danger so great that the plaintiff was precipitated to the floor and seriously injured.
The first question the jury was called upon to answer as a special verdict would seem to limit the cause of the injury to but one thing-—that of the absence of guards on the plank walk, while, in fact, that was but a contributory cause. The same may be said of the second special issue. The ease was brought, and the trial was had, upon the theory that both these things combined to cause the injury, and not either the one or the other solely. If to the first special verdict the jury should answer “Yes,” the effect would be to say the smoke was no factor in causing the injury. Should the jury answer the first with “No,” and the second with “Yes,” the result would be to eliminate the condition of the plank walk entirely. Special finding No. 3, being based upon the answer the jury might give to No. 2, which is not responsible to any issue, becomes immaterial. Special verdict No. 4 is responsive to an issue made by the pleadings. But, as these special issues were asked as a whole and not all being issues in the case, the court was not bound to direct the jury to find on any of them, without being specially requested so to do. The special issues could have been easily framed so that they would have correctly stated the issues and not been misleading or confusing had the plaintiff been given an opportunity to offer amendments thereto.
We think the refusal of the court to direct the jury as requested was within its power and the power was properly exercised. Therefore, in answer to the issue before us, we *284are of the opinion the requirements of section 625 of the Code of Civil Procedure, commanding the court to submit special issues to the jury are mandatory, and such special issues, when embodying the real issues in the case and not subject to other legal objections, must be submitted to the jury. But the court must pass upon their pertinency, their materiality and legality, as it is the court’s duty to pass upon all other matters submitted to the jury. If such issues are in every way proper, the court has no discretion to refuse them.
The judgment is affirmed.