(dissenting).
I am of the opinion that we erred in granting defendant Zak a new trial; and that the order of the trial court should be affirmed. Upon rehearing it was made clear for the first time that it was defendant Turner who insisted that the jury be Instructed with reference to the so-called “slow speed” statute; and that plaintiff did not request its submission. In response to a question from the court, plaintiff’s counsel merely stated that he thought the statute was relevant.
It is clear that Zak insisted that the statute was not applicable even to a limited extent; and that his exception to the instruction thereon was not a qualified one but a direct attack upon the submission of the statute in its entirety. Plaintiff contends that, if Zak desired to have the statute qualified, it was incumbent upon him to request the court to make such a qualification. With this I agree.
This was a three-party lawsuit in which there was a controversy between the two defendants. In such a situation the plaintiff should *17not be compelled to take sides with either defendant at the risk of losing if he should fail to do so. On a primary issue between defendants, each defendant should be required to protect the record in so far as his contentions with respect thereto are concerned.
On the record before us, whether Zak was guilty of a violation of the “slow speed” statute clearly presented a jury question. Where a statute applies wholly, its recitation should be sufficient. If one of the parties deems that it should be qualified, he should request an instruction to such effect, or at least suggest to the trial court that the statute’s aplication was limited in the situation presented. To hold in such cases that only a general exception to submission of the statute need be made would permit a defendant taking such an exception to await the outcome of the case and, if the verdict were adverse to him, to then obtain á new trial at the expense of a plaintiff not involved in the controversy between the defendants.
The case of Greene v. Mathiowetz, 212 Minn. 171, 3 N. W. (2d) 97, though decided by a divided court, is the law of this state. Therein the “slow speed” statute was given and the instructions approved even though the automobile involved was disabled and being propelled by hand at slow speed. There this court stated (212 Minn. 177, 3 N. W. [2d] 100):
“That plaintiff’s car was proceeding at ‘slow speed’ and, ‘so far as running is concerned,’ was ‘entirely unsafe until repaired’ are conceded facts. If these facts could be found to enter into the chain of causation, these provisions [one the “slow speed” statute], with propriety, could be read to the jury.
“* * * And if counsel thought the reading of these statutes was harmful to plaintiff’s cause, in fairness to the court and opposing counsel, attention should have been called thereto promptly to avoid error.” (Italics supplied.)
There we held that the reading of the “slow speed” statute did not involve a controlling proposition of law but rather only an inaccuracy likely to creep into a charge orally delivered to the jury. The court pointed out that an unintentional misstatement of law which could have been corrected at the trial, if attention had been called *18to it, would not require a reversal unless it related to “some controlling proposition of law”; and restated the rule expressed in Sassen v. Haegle, 125 Minn. 441, 444, 147 N. W. 445, 446, 52 L. R. A. (N. S.) 1176, 1178, that:
“* * * Inaccuracy in expression, failure to instruct on every possible hypothesis, or inadequate treatment of some phase of the law applicable to the controversy does not, as a rule, entitle a party to take advantage thereof upon the motion for a new trial where, had the shortcoming in the charge been called to the attention of the court by an exception or suggestion before the fury retired, we might readily assume that the court would have promptly corrected the inadvertence.” (Italics supplied.)
The majority opinion upon rehearing relies upon Peterson v. Western Union Tel. Co. 72 Minn. 41, 74 N. W. 1022, 40 L. R. A. 661, and Kollodge v. F. and L. Appliances, Inc. 248 Minn. 357, 80 N. W. (2d) 62, both of which appear readily distinguishable. In the Peterson case it was urged that defendant was not in a position to raise an objection to the charge for the reason that he had objected to it exclusively upon one ground and “did not specifically call the court’s attention to the particular vice in this part of the charge.” In granting a new trial, this court stated (72 Minn. 46, 74 N. W. 1023):
“Counsel took two entirely distinct exceptions: First, to the submission of the question of exemplary damages to the jury at all; and, second, to the part of the charge which stated the grounds upon which the jury might award such damages; and we cannot see anything in what followed that amounted to a waiver of either of the exceptions or a merger of the second in the first. The second exception was sufficiently explicit. Counsel called the court’s attention specifically to the particular part of the charge excepted to, embodying it verbatim in his exception. We do not think he was required, under the circumstances, to go further, and explain to the court the reasons why the charge was erroneous.”
In Kollodge v. F. and L. Appliances, Inc. supra, both subds. 4(b) and 4(d) of M. S. A. 169.18 were applicable to the fact situation presented. In charging the jury, however, the trial court submitted for *19its consideration only § 169.18, subd. 4(b). Accordingly, it was held error not to give the jury all applicable provisions of this section.
In the instant case but one part of the “slow speed” statute was involved and this part was given to the jury in its entirety. Only a general exception to its submission was taken by defendant Zak and he should not be permitted to now urge that the trial court’s failure to qualify its application constituted reversible error.