concurring:
I agree with the judgment of the court in reversing the judgment in this case, but not upon the ground that is given. I do not think that in sending word that the Judge sent to the jury in this case, namely, “If the finding is against both defendants, return a joint verdict,” in response to a written question from the jury in which they asked “Shall we return a separate or joint verdict against the defendants?” was within the meaning of our decisions and statute as to giving further instructions to a jury; nor is my view changed by having called to my attention the so-called Konigsburg case, decided October 25, 1926 by this court in which the trial court without the knowledge or consent of the parties, or notice to them, instructed the jury how they might answer special interrogatories, for doing which this court reversed the judgment of the Common Pleas Court and the Supreme Court in 116 Oh St, 640, intimated that it might have affirmed the judgment of reversal had that part of the record been in the bill of exceptions. What the trial court did in that case, I think was an instruction to the jury in a matter in which the court had no business to interfere, either with or without notification to the attorneys; nor is Evans v Cleveland Railway Co., No. 6707, decided by this court July 1, 1926, unreported, a case in point. In that case the judge went to the jury room arid told the jury that he could not instruct them but they might ask him questions, and they proceeded to ask him questions as to what they might do under certain circumstances and’ what they might do under certain other circumstances and he answered their questions which I think was an instruction to the jury by indirection. He refused to instruct in so many words, but did instruct by answering several questions submitted to him by various members of the panel. t
What the court did in the instant case is not in any way what the judge did in either of the two cases above mentioned. While I am firmly of the opinion that the court ought not to instruct the jury, I should hate to draw the line so fine that the court could not answer the question as it did in this case. And so, for this reason, I do not agree upon the ground upon which the case is reversed, but I do concur in the judgment for the record in this case, in my judgment, does not show any negligence upon the part ■ of the Cleveland Railway Co., but it does show the greatest kind of criminal negligence upon the part of the Cab Company; nor do I think there is any contributory negligence shown upon the part of the plaintiff. There is no evidence, in my judgment, to show that either, especially none on the part of the conductor or motorman of the car with which the cab in which the plaintiff was riding came in contact and whose conductor and motorman the plaintiff charges as’ being negligent.
Therefore, while concurring in the judgment of reversal I do so on grounds other .than those given by the majority of the court, and in order to make myself understood I have thought best to write this short concurring opinion.