It is- argued-, in the first place, by the respondent, that the court,in effect, withdrew the special questions from the jury, without objection on the part of the defendant. Such does not seem to have been the fact. The court told the jury that, if they could not agree,, they might so -report. This was not a withdrawal, because it implied that they were to consider the questions, and that they might perhaps agree thereon. If they had agreed on these special questions, no one would have said that the questions, had been withdrawn. Whether or not special questions can be withdrawn, and when tins may be done, are therefore matters not involved in this case. If a court should say to a jury (where there were no special questions), “ if you cannot agree you may report to the court,” this would not be a withdrawal of the case from them.
In the case of Moss v. Priest (19 Abb. Pr., 314), the jury rendered a general verdict for plaintiff; and, through some mistake, the foreman made an oral answer in the affirmative to.the questions. No written findings were made, and no entry of the verdict. No objection was made at the time. Afterwards the defendant moved to correct the verdict, by directing the answers to be entered. This was granted by the court below, but reversed by the General Term of the Superior Court; unless the defendant would consent *117that two of the answers should be in the negative. That case, therefore, does not apply to the present. Taylor v. Ketchum (35 How. Pr., 296), briefly holds that a judge can withdraw a special question. It does not appear when such withdrawal was. (Fraschieris v. Henriques (6 Abb. Pr., N. S., 251) does not touch this question here involved.
The defendant further insists that there was no exception at the proper time. The court, in saying that the jury might agree on a; general verdict, and report that they could not on the special findings, added, .“the court will do what it thinks proper.” This might mean that the court would send the jury put or refuse to receive the verdict. We do not think that the defendant’s rights were lost by a failure to except at that time. ' On the actual coming in of the jury and their rendition of the verdict, an exception was taken.
The Code of Civil Procedure is silent on the effect of an inability pf the jury to agree on the special questions. (§§ 1187,1189.) ¡
The learned justice who tried the cause was of the opinion that the report of the jury, that they could not agree as to special findings, -justified a presumption that they found on ■ sufficient of these to sustain the verdict, and disagreed as to the others. It is difficult-to understand how a report that they could not agree on special findings. meant that they did agree on some. Why did they not specify those on which they agreed ?
■ It is possible that only four jurors agreed on the affirmative to each of the questions, 2, 3 and 4; and then that all the jurors united' in the general verdict. Even supposing this to have been proper, the difficulty- remains that the question of the plaintiff’s contributory negligence was submitted to the jury in the first question and in no other.- To justify the general verdict, therefore, the jury were bound- to give, in their own minds, an answer to that question. Even if it-be permitted that the several, jurors should believe, in their minds, -that the defendant’s negligence consisted in several different things; still, to justify a verdict, there must have been an agreement on the plaintiff’s want of negligence. Wc do not-see anyground for presumption that the jurors agreed on an answer to *118the first special question. And. if they could not agree on that, how could they, in good faith, render a verdict ?
We arc not aware what is the special object of this system of submitting questions. Bat it may have the good effect of requiring a jury to come to distinct conclusions on the several matters iu issue, instead of rendering what are called, compromise verdicts. And perhaps the present may bo an instance where tho jury could not agree that the plaintiff had not been negligent; could not agree On any specific negligence of which the defendant had been guilty; but found it easy to agree that the defendant, a corporation, should pay- $6,000 to one whose arm had been lost in their employment, even by his own negligence or without any negligence of the defendants.
We are not prepared to say whether or not, after special questions have been submitted to a jury, they can bo withdrawn without consent of parties, when the jury intimate that they cannot agree thereon. It can readily be seen that such a practice might be evil. But that question is not before us now.
Nor do we need to say that, in every case where a jury find a general verdict and report that they cannot agree on the special findings, tho verdict cannot stand. We prefer to take the present case, just as it is. If tho jury were warranted in their own minds' in rendering the general verdict, they must have agreed that the plaintiff was not guilty of contributory negligence. That was submitted to them only by tho first question. If, in fact, they agreed On tho answer to that question, they could have said so. They said generally that they could not agree. Even admitting that conflicting views On the 2d, 3d and 4th might be mentally harmonized under a general conclusion of negligence, nothing of this kind could bo done as to the first. That presented the question for them to decide whether the plaintiff was negligent in the manner there stated. On this they evidently could not agree.
To have rendered a general verdict without agreeing on that first question was a violation of their duty.
Tho judgment and order should be reversed, a new trial granted,, costs to abide event.
*119Present — Learned, P. J., Bockes and Westbrook, JJ.Ordered accordingly.'