dissenting.
I cannot consent to the judgment of reversal. A verdict in the sum of $3,000 only, was rendered against the defendant. The testimony shows that the plaintiff’s only means of support was the labor of her son, who was killed, as the evidence tended to show, through the gross negligence of the defendant, and I am unwilling to consent to a reversal upon what seems to me the merest technicality and inadvertence. The omission of the word in the instruction was not called to the attention of the court at the time of the trial, nor upon the motion for a new trial. In the original opinion, the writer of this made use of the following language concerning the instructions:
“The defendant offered twenty instructions, ten of which were given, and error is assigned upon the refusal of the court to give ten of the instructions offered-The first was an instruction to direct the jury to return a verdict for the defendant. This was properly refused. Instructions numbered 10, 11, and 12 were given in substance by the court in another form; but these instructions were properly refused, because misleading,—-13 and 14 imply that Ryan should have ascertained whether the stull was fastened or not, regardless of the promise of Whitcomb, and 15 assumes that all who were engaged with Ryan in putting in the stull were his co-employees. Instruction number 16 is equivalent to a direction to find for the defendant; number 17 is not applicable to the facts of the case; and number 18 is misleading and does not state the issue. The instructions were properly refused.
“To each and every instruction given by the court, *411except instructions prepared and offered by defendant’s counsel, the defendant objected, and, when the objections were overruled, excepted, in the following language: ‘The defendant, before the giving of the following instruction, and at the time, objected to the giving thereof to the jury, and objected to each paragraph thereof; the objections were overruled by the court, to which ruling the defendant then and there duly excepted.’ We find that the defendant objected and excepted in this way to the giving of an instruction, that ‘the company, as a defense to cause of action* deny generally each and every allegation in the complaint, and further say that if there was any negligence in the failure to fasten the stull mentioned in the complaint, it was due solely t© the failure of said Ryan, deceased, to fasten said stull; and the company further say that if it was not so due to his failure, it was due to the failure ©f a fellow-servant of the said Ryan, and hence the company is not liable;’ and also to this instruction: ‘It is the duty of any employee to exercise all reasonable care and prudence in performing the duties of the employment he undertakes, to secure his own safety and that of his fellow employees.’ These objections, made to each paragraph of the instructions, did not tend in any way to enlighten the court as to what objections the counsel really had. There can be no possible objection to the instruction, or statement, that the defendant denied the allegations of the complaint, nor to the statement in the instructions that the company relied for its defense upon the negligence of the deceased or the negligence of a fellow-servant of the deceased; and when the attorney objects to every instruction given by the court, and to every paragraph thereof, without calling the court’s *412attention particularly to the objectionable matter, the court is in no better position to determine what objection the attorney really has than if a general objection were made to the instructions as a whole. The defendant objected in the same form to the following instruction, and now insists that the case must be reversed because the court gave this instruction over its objection:
“ ‘The jury is instructed that the rule which obtains in the state of Colorado is that for the acts of the vice-principal, done within the scope of his employment and such as properly devolve upon the master in his general duty to his servants, the master is liable; while for all such acts as relate to the common employment which are on a level with the acts of the fellow-laborer, except such acts as are done by the vice-principal against the reasonable objection of the injured servant, _the master is responsible. In other words, the test of liability is the character of the act, rather than the relative rank of the servant.’
. “It is apparent that the word ‘not’ was omitted from before the word ‘responsible’ through a clerical error; the instruction being, in all other respects, an almost literal copy of the language used by this court in the case of Deep Mining Company v. Fitzgerald, 21 Colo. 533. It is not at all likely that the jury were misled by the omission of the word ‘not.’ The instruction purports to contrast those acts of the vice-principal for which the master is liable with those for which he is not; and, as applied to the facts of this case, it was no doubt understood to mean that for the negligence of Whitcomb in the acts of common labor at the mine, the company would not be liable, unless the negligent act was objected to by Ryan and his fellow-*413servants; and not the contrary of this, that the companywould be liable unless the act was objected to. However that may be, the instruction was undoubtedly erroneous, and if properly objected to is sum cient to require a reversal of the judgm- nt. Yv think it is the duty of the appellate courts no- tu r ■ verse a judgment upon a mere technical error wn n it is apparent from the entire record that the erio. was merely inadvertent and one which .the court would have corrected instantly if its attention ha-1 been called to it by counsel. It is the duty of counsel not to permit the court to make an error of this kind. The mere objection to the giving of the instruction and to the giving of each paragraph thereof, did not call the court’s attention to the fact that the word ‘not’ had been omitted. In the case of D. & R. G. R. R. v. Ryan, 17 Colo, at page 104, the court says: ‘We are aware that the code, section 357, dispenses with the necessity of taking exceptions to the giving, refusing, or modifying instructions. The mere formal reservation of an exception by the defeated party was doubtless considered unimportant and liable to be omitted through inadvertence and so was dispensed with. But the statute does not do away with the reason or necessity for making objections in some appropriate way to instructions in such time and manner as to give the trial court an opportunity to correct the same if found erroneous. Any judge in the hurry of a nisi prius trial is liable to err unless aided by the vigilance of counsel. From time immemorial it has been a well recognized and most salutary rule of the common law, that if counsel neglect to.object or to point out errors occurring at the trial in such time and manner as will give opportunity for their correction, they will not, in gen*414eral, be heard to complain of such errors in a court of review. This rule is so reasonable and so essential to the administration of justice that we cannot believe it could have been the intent of the legislature to overthrow it altogether. Any other rule would enable a party to sit silently by, knowing some error had been committed against his interest of which perhaps no other person was aware at the time, and thus take the chances of a verdi-ct in his favor, while having the sure means of setting aside the verdict if it happened to be against him. The law in this jurisdiction has never permitted, and it is to be hoped that it never will permit such experiments with judicial proceedings. There will always be enough important questions to review in the appellate courts if parties are required to be vigilant to prevent error in the trial courts.’
“And in the case of Supreme Lodge v. Davis, 26 Colo. 262, the court says: ‘The objections made in no manner enlightened the trial judge regarding alleged errors in the charge which are now insisted upon, nor gave him any opportunity to correct them if any were committed. The practice which has obtained, of making objections without in any manner specifying the reasons upon which they are based, should not be encouraged. Objections so made are of no assistance to the trial judge; in no manner aid him in correcting errors into which he may have fallen in formulating his instructions; operate as a mere drag-net which counsel casts out at random, to draw in at leisure, and examine for results, long after the time the errors alleged to have been committed have caused the mischief of which he subsequently complains, and which he might have prevented by acting in apt time. Such a practice is unfair to the trial *415court, as well as litigants, and no objections to instructions ought to be considered sufficient to permit a review thereof, unless so framed that the attention of the trial judge, at the close of his charge, has been specifically directed to the alleged errors therein, and an opportunity thus afforded to correct them.’
“There is no need to present further reasons for the enforcement of the- rule as to this instruction.
“Error is assigned to the giving of the following: ‘The court instructs you that the burden is upon the plaintiff to establish the material allegations of her complaint by a preponderance of the evidence.’ We think this assignment falls within the same rule. The objection now urged is, that the instruction does not enumerate the material allegations of the complaint. No such objection was made at the time.”
It will be observed that the original opinion is not based upon the fact that proper exceptions were not saved, and that the court has misstated the effect of that opinion when this language is used: “In the original opinion it was thought that the exception to this instruction was insufficient to raise the question of the correctness of the instruction on account of the omission of the word ‘not,’ mainly because it might be said that the omission was an inadvertence.”
In the original opinion it was held, not that an exception was not saved, but that a proper objection was not made. In the case of D.&R.G.R.R.Co.v. Ryan, cited herein, it is expressly held that the code dispenses with the formal reservation of an exeeptionr but does not do away with the necessity of making appropriate objections
In the case of Supreme Lodge v. Davis, also cited the court said: “The objections made in no manner enlightened the trial judge regarding alleged errors *416in the charge, * * * nor gave him an opportunity to correct them, if any were committed. The practice which has obtained, of making objections without in any manner specifying the reasons upon which they are based, should not be encouraged. Objections so made are of no assistance to the trial judge.”
, In the case of Beals v. Cone, 27 Colo. 473, it is held that a general exception in these words, “To the giving of which instructions, and to each and every thereof, the plaintiff by his counsel then and there duly excepted, is equivalent to saving an exception to each instruction separately, but it cannot avail as against any instruction to which it is directed, which contains a correct statement of the law, because it is insufficient to point out that which is incorrect from that which is correct;” citing with approval the two cases mentioned herein. In the case of Beals v. Cone, the distinction is not made between exception and objection, but it is held that unless exceptions are so made as to direct the attention of the trial court to the errors of law complained of, this court will not review them.
So, it seems, that when exceptions or objections are made, they must in some appropriate manner point out the errors complained of, in order that the trial judge may have an opportunity of correcting them, and unless so made they will not be reviewed in this court. And further, that a general exception made at the close of the charge is equivalent to saving an exception to each instruction separately. If, then, the saving of a general exception is the equivalent of an exception to each instruction separately, and if such general exception will not avail against an instruction which contains a correct proposition of *417the law because it is insufficient to point out that which is incorrect from that which is correct; it follows inevitably that the noting of an exception or objection to eaeh instruction separately will not avail, if the instruction complained of contains a correct proposition of law, because it does not point out that which is incorrect from that which is correct.
The authorities cited here, it is stated in the opinion, are not applicable, because the instruction in question contains but one proposition of law. I submit that the instruction contains three propositions of law, two of which are correct. The statement “that for the acts of the vice-principal, done within the scope of his employment, and such as properly devolve upon the master in his general duty to his servant, the master is liable,” is surely a proposition of law stated correctly. “For all such acts as relate to the common employment which are on a level with the acts of the fellow-laborer, except such acts as are done by the vice-principal against the reasonable objection of the injured servant, the master is responsible,” is a proposition of law incorrectly stated. The fact that these propositions were connected and contrasted, by the use of the conjunction while, does not make the two propositions a single one. “In other words, the test of liability is the character of the act rather than the relative rank of the servant,” is also a proposition of law correctly stated. This instruction, containing, as it does, more than one proposition of law, and one proposition being correctly stated, under the authority of Beals v. Cone, the objection and exception should not be considered by this court because not properly presented to the trial judge.
*418In the brief in support of the petition for rehearing, counsel says that the language employed in the original opinion suggests that counsel was guilty of sharp practice. Inasmuch as the only portion of the original opinion which could possibly bear any such construction is made a part of this, the writer disclaims any intention of charging counsel with improper conduct. It was at the time of preparing the original opinion, and is now, his firm belief that neither court nor counsel knew that the word “not” had been omitted from the instruction in question.