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.
*287Counsel in their petition for rehearing claim that it is their right, under said section 625, “to interrogate the jury as to matters material to the issues, yet not necessarily covering any of the issues.” If counsel mean by the phrase italicized that the jury may be interrogated as to facts not related or pertinent to the issues of any of them, I cannot agree with them, and I agree with Justice McLaughlin in what I understand to be his view of the meaning of the section, that it is not the right of a party to submit questions for the jury upon every evidentiary fact, though material to the issue. A wise discretion must be exercised by the trial court in determining to what extent questions of fact pertinent to the issues should, for their elucidation, be submitted to the jury. It is not easy to draw the precise line of demarcation between questions of fact which it would be the duty of the court to submit to the jury, and such as the court may properly refuse to so submit. An examination of the eases will show a somewhat wide latitude allowed under this section: See Los Angeles C. Assn. v. Los Angeles, 103 Cal. 461, 37 Pac. 375; McAulay v. Moody, 128 Cal. 202, 60 Pac. 778.
I agree with counsel for defendant that it is their right to submit questions of fact to the court' for the jury without first having submitted them to opposing counsel, and the responsibility is then put upon the court to determine whether or not to place them before the jury. I see no controlling analogy between the practice under this section and the practice as to instructions. The discretion rests with the court either to submit or refuse the questions as requested, for, if it be held that the court may change or modify the questions as propounded, it would cease to be a request of the party asking it, and the statute would be no longer mandatory. This discretion, of course, is subject to review by the appellate court, as is the exercise of discretion generally.
Upon further consideration of the case I agree with my •associate, Justice Buckles, that the fourth question was responsive to an issue, and was a proper question of fact to be submitted to the jury. It was alleged in the complaint that the absence of rails guarding the walk in question was one of the causes leading to the injury, but the defendant submitted the series of questions and asked that they be *288submitted in their entirety, and, when the request as made, was refused, it was the duty of defendant, if it desired any one of the questions to be submitted separately, to so request the court. It would certainly be of advantage to the profession if a comprehensive statement could authoritatively be given as to the complete rights of the parties to an action as matter of practice under this section 625. When such an exposition is made, however, it would be perhaps better that it should come from the supreme court. Here the case does not seem to call for such statement.