(dissenting). I am unable to agree with the conclusion arrived at by the majority opinion. With reference to the court reading the complaint and answer to the jury, thus permitting them to understand the issues, if this were error, it was error without prejudice, and hence not reversible.
The counsel for both plaintiff and defendant must have thoroughly stated the issues as formed by the pleadings, in presenting the case to the jury. Certainly, the first thing the counsel for plaintiff would do, in proceeding to present the case to the court and jury, would be to state to the jury the issues formed by the pleadings; and, no doubt, defendant would do the same thing on presenting his side of the case to the jury.
The trial could not well have been had unless this were done. The reference by the'court to the pleadings, while giving instructions of law, in the circumstances of this case, w'as not prejudicial, reversible error.
We are of the opinion that all of the reasons given for the reversal of the judgment are largely technical. The defendant has had a fair *67and impartial trial. The negligence complained of has been established by an abundance of evidence.