(dissenting). The district court in its charge to the jury by the instruction quoted at length in the majority opinion and by several others of the same tenor either assumed or direc.ly charged that the sc.affold from which plaintiff fell was “a place tn work,” which it was, from the nature of the employment, the duty of defendants to furnish and keep in reasonably safe condition. This instruction, wherever given or implied, is now conceded to have been erroneous and a misstatement of the law appliacable to this case. After the charge, complete in all particulars even to the direction of a form of verdict, was delivered, the court by an apparent, afterthought submitted seven special findings, and directed the jury that, in making these findings, it should wholly “disregard the law as I have laid it down to you to the effect that it was the duty of Bailes & Perkins to use ordinary care to furnish a reasonably safe staging for plaintiff to work on and you must consider the evidence bearing on such questions just as though the court had said nothing to you about the duties of the defendants in this regard under the law.” The jury thereupon returned a general verdict in *593favor of plaintiff assessing his damage in the sum of $2,500, and at the same time returned a special verdict consisting of the questions submitted to it by the court answered in such a way as to find as a fact that defendants by special agreement assumed the responsibility of furnishing a scaffold in safe condition for plaintiff to work upon. Upon receiving these verdicts, the court rendered judgment in favor of plaintiff for $2,500.
(125 N. W. 891.It seems clearly apparent that the general verdict, being unquestionably based wholly upon an erroneous instruction, is void throughout. The special verdict, assuming that the jury as directed disregarded that part of -the charge bearing on defendants’ duty with reference to the scaffold, was rendered without any definite instruction whatever on the law points applicable to this feature of the case. There was no special finding as to the amount of damage. The judgment rendered must, therefore, have been either based wholly upon the general verdict or the data necessary for its rendition obtained by piecing together the special findings with reference to the assumption of liability by defendants and the amount of damage which appears only in the general verdict. I do not see how a judgment thus based either upon a general verdict that is admittedly-void or partially upon it and on a special verdict which is entirely insufficient in an important particular can be sustained.
Further than this, the charge as given was so confusing that by fair presumption the jury were misled by it. The principles upon which it was directed to find its general verdict are first set out in such detail that any jury might reasonably assume that its first consideration should be applied to this particular. But in agreeing upon its general verdict it was required to accept as matter of law the very facts which it was directed to find in its special verdict. Proceeding in this order the minds of the jury would be fully made up on the questions submitted by the special verdict before the consideration of the same was properly reached. A charge so bewildering and so liable to mislead should, I think, be regarded as necessarily prejudicial to the interests of defendants; and I believe requires a reversal of the judgment and a new trial of the case.