(dissenting).
A majority of the court has this day denied the application for rehearing filed in this case.
*7I dissented from the opinion and judgment affirming the judgment in this cause, but did not set forth my reasons for dissenting. It was my conclusion then, and still is, that the action of the jurors in interrogating various witnesses went beyond permissible limits. If this be so, then the plaintiff did not receive a trial free of prejudicial matter. To this she was entitled.
I am dissenting from the action of a majority of my brethren in denying the application for rehearing. I would grant the same and reverse the judgment.
I agree that occasional questions by a juror are permissible, provided such questions are germane to the issues, and by inference are asked to clarify in the juror’s mind the true meaning of the witness’ testimony.
However, when over 100 questions are posed by jurors to various witnesses (counsel for appellant states that by actual count there were 130), then the very weight of the numbers carry the questioning by the jurors beyond the allowable range of occasional questions.
Of more serious import is the nature of some of the questions propounded by the jurors. Some indicate that the juror had in mind the doctrine of assumption of risk, totally irrelevant in the proceedings below. Others would have been subject to objection if posed by counsel. Several of the questions were clearly more argumentative than interrogative.
As stated in State v. Sickles, 220 Mo.App. 290, 286 S.W. 432:
“ * * * The juror was proceeding by the grace of the court and not by right, and in so delicate a situation the court should have acted without requiring objection to be made by counsel.”
It would appear that the conduct of the jurors in this case was palpably erroneous, and was ineradicably prejudicial to the substantial rights of the appellant. Such matter was presented on the motion for a new trial. Under such circumstances it should be available on appeal. See Bayliss Machine & Weld. Co. v. Huntsville Ice and Coal Co., 265 Ala. 383, 91 So.2d 483; Brotherhood of Railroad Trainmen v. Jennings, 232 Ala. 438, 168 So. 173.
LIVINGSTON, C. J., and COLEMAN, J., concur.