(concurring). Because of the improper comments by the trial court, which may have influenced the jury in arriving at its verdict, I agree with the result reached by the majority.
I am of the opinion, however, that with respect to the instruction on lookout, it being obviously erroneous, the defendant had the duty of objecting and pointing out the error so that the trial c^urt could have had an opportunity to correct it before submitting the cases to the jury; and that *496the defendant should not be permitted to sit back, either deliberately or by reason of inattention, while an erroneous instruction is given, and then be afforded a new trial on that account.
In the absence of statute the law is stated to be:
. . objections or exceptions to instructions should be made at the conclusion of the charge, or at some appropriate moment before the case is finally given to the jury, so as to afford the court an opportunity to correct the alleged error.” 53 Am. Jur., Trial, p. 607, sec. 827.
The statutes require counsel to request desired instructions. If counsel prefer to rely upon the court to give suitable instructions, then at least they should be required to listen and make timely objections to errors committed by the court. Obviously, if counsel request an instruction and the court refuses to give it or changes its form so that it is erroneous, counsel would be protected.
I do not believe that it was the intention of the legislature in eliminating the need for the taking of exceptions to the court’s rulings and to the court’s failure to instruct as requested, to change the law with respect to participation by the trial attorneys and to supervise the instructions given by the court to the end that the case may be properly tried in one proceeding. To hold otherwise would be to put a premium on laxity and award a new trial for errors which counsel might well avert by diligence.