(concurring): The real purpose and function of special questions is to have the jury resolve specific, material controverted issues of fact. Where such facts are not in dispute the stated purpose does not obtain and special questions concerning them should not be submitted to the jury.
In my opinion- it was error to submit special questions touching uncontroverted issues in this case. The learned trial court probably reached the same conclusion on the argument of the motion for a new trial. Did it necessarily follow the court was compelled to grant anew trial? Not unless it also believed the error prejudicially affected the substantial rights of the defendant. The trial court must have concluded it did not. It knew exactly how those facts had been argued to the jury, a fact we do not absolutely know. It is, however, almost unbelievable that able counsel for defendant did not frankly state to the jury that the proper answers to those questions were admitted by it and that the court, in effect, was instructing the jury that notwithstanding such admissions the question of defendant’s negligence nevertheless remained one for the determination of the jury. Under these particular circumstances I think it would be rather robust to conclude the error was prejudicial and that the court abused sound judicial discretion in overruling the motion for a new trial on that ground.