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In Blend v. People, 41 N. Y. 604, where it appeared that the trial proceeded before a legal tribunal consisting of the county judge and two associate justices, and one of the justices abandoned the bench during the trial and another justice took his place, it was said: “This is not the case where a member of the court leaves the bench for a few moments, intending to return, and does return, but a total abandonment of the trial, in consequence of which one-third of the court is changed; and it is not for us to speculate in regard to the probable injury which might result from the substitution of Davidson; it is sufficient that the prisoner had a right to insist that his trial should proceed before the same court before which it was commenced. It is insisted by the counsel for the defendants in error, that no possible injury could result to the prisoner in consequence of such change. We have no means of determining that question, as we are unable to ascertain from the facts before us, what influence Elwood (who abandoned the trial) might have exercised during the trial or in determining the punishment to be inflicted upon the prisoner.”

In the case at bar, we think that the plaintiff in error had a right to insist that his trial should proceed before the same judge before whom it was commenced. It is not sufficient that the court or the tribunal was the same by the substitution of another judge of equal power. Section 51 of the Practice act provides that “the court, in charging the jury, shall only instruct as to the law of the case." (3 Starr & Curt. Ann. Stat.—2d ed.-p. 3045). And section 52 of the same act provides as follows: "Hereafter no judge shall instruct the petit jury in any case, civil or criminal, unless such instructions are reduced to writing.” (Ibid. p. 3047). Section 53 provides as follows: "And when instructions are asked which the judge cannot give, he shall, on the margin thereof, write the word 'refused'; and such as he approves he shall write, on the margin thereof, the word 'given'; and he

shall in no case, after instructions are given, qualify, modify, or in any manner explain the same to the jury otherwise than in writing. Exceptions to the giving or refusing any instructions may be entered at any time before the entry of final judgment in the case.” (Ibid. p. 3048). It will be noticed that in sections 52 and 53 the word “judge" is used in place of the word "court" which appears in section 51. It is the particular person presiding as judge, and not the court as a tribunal, who, under section 53, is required to mark the word "given" upon instructions which he approves and the word "refused" upon instructions which he refuses. The words "the judge,” as used in section 53, refer to the presiding judge, or the judge who has heard the evidence and has conducted the trial. A single judge is there referred to, and there is no reference to more than one judge. The language of section 53 excludes the idea that more than one judge can participate in passing upon the instructions to be given to the jury, or that any other judge can pass upon such instructions than the one who has heard the evidence and conducted the trial.

It is impossible for us to say that no injury resulted to this plaintiff in error from the substitution, in the manner beretofore indicated, of one judge for another during the trial of the cause. This was done over the objection and against the protest of the counsel of plaintiff in error, made in the presence of the jury. It cannot be known what impression this change may have made upon the minds of the jury to the prejudice of the plaintiff in error. In Smith v. Sherwood, 95 Wis. 560, it was said: “The presiding judge of a trial court is charged with the duty of trying the case from the opening to the close, and he ought not to abdicate his functions even for half an hour.

We cannot but regard this long absence from the bench during an important part of the trial as an error which calls for a new trial. We feel that we should be doing wrong to sanction any such practice.

Such a rule, once established, would open the way to dangerous abuses and break down one of the most valuable safeguards to litigants."

In People v. McPherson, 74 Hun, 336, it was held that a criminal case cannot be partly tried before one magistrate and partly before another, and it was there said: “The proposition that a criminal case cannot be partly tried before one magistrate and partly before another seems to me too clear to need argument or citation of authority to sustain it. When the trial of a case is once commenced it must proceed to the end before the same court and jury.” In O'Brien v. People, 17 Col. 561, it was said: “Moreover, the presence of the judge is essential to the organization of a court for the trial of felony cases. If the judge is absent while substantial proceedings, such as the taking of evidence or the argument of counsel, are being carried on in the presence of the trial jury, such proceedings must be regarded as coram non judice; and if, as in this case, it affirmatively appears by the bill of exceptions that the judge was absent against the objections of the defendant, his absence must be held ground for reversal.” (See also People v. Eckert, 16 Cal. 110; State v. Smith, 49 Conn. 383; State of Iowa v. Carnagy, supra; State v. Beuerman, supra; Palin v. State, 38 Neb. 862).

While, in the case at bar, there was a judge present on the bench during all of the trial, yet the judge, who heard the evidence, absented himself from the bench before the trial was concluded. The plaintiff in error was entitled to his judgment upon the law and the facts up to the time of the retirement of the jury to consider of their verdict. Hence, when he was absent from the bench, the authorities, which hold that absence from the bench is error such as justifies a reversal, are strictly applicable to his conduct. His absence was not excused by the fact that another judge, not familiar with the evidence, instructed the jury and received the verdict. The injury, which may have inured to the interests of the plaintiff

in error, was not counterbalanced by the presence of a new and outside presiding officer.

For the reasons above stated, the judgment of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.

Reversed and remanded.

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192 509 114a 1471

1. MASTER AND SERVANT—when servant does not assume risk of dangerous work. If a servant, though having some knowledge of the attendant danger, is ordered by the master to proceed with the dangerous work, he does not assume the risk unless the danger is so imminent that an ordinarily prudent person would not have incurred it, —which latter fact is ordinarily to be determined by the jury.

2. SAME-rhen question of degree of danger is properly left to the jury. Whether a servant injured while putting a belt over a pulley in a machine shop acted recklessly in obeying the master's order to put it on, is properly left to the jury under evidence that the belt was improperly sewed, leaving a twist therein; that the servant called the master's attention thereto, and that the master said, “It is all right; go ahead and put it on," which the servant then attempted to do, not knowing of the danger.

3. EVIDENCE-when it is not improper to admit testimony of experts. Whether the operation of machinery by a twisted belt is dangerous is not a matter of such common knowledge that it is error to permit the introduction of expert testimony on the subject.

4. TRIAL-special interrogatories not calling for the ultimate facts are properly refused. Special interrogatories are properly refused which do not pertain to the ultimate fact in issue or which assume an evidentiary fact as proven. Gundlach v.

Schott, 95 Ill. App. 110, affirmed.

APPEAL from the Appellate Court for the Fourth District;-heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. M. W. SCHAEFER, Judge, presiding.

WISE & McNulty, (WINKLEMAN & BARR, of counsel,) for appellants.

WEBB & WEBB, and G. A. KọERNER, for appellee.

Mr. CHIEF JUSTICE WILKIN delivered the opinion of the court:

This is an appeal from a judgment of the Appellate Court for the Fourth District affirming a judgment rendered in an action on the case for a personal injury, in the circuit court of St. Clair county, in favor of appellee, for $7000, against appellants.

The declaration contained four counts, but the cause was submitted to the jury upon the third count only, the jury having been directed, at the close of appellee's evidence, to find for appellants as to the first, second and fourth counts. The third count charges, in substance, that on the 8th of September, 1899, appellants were owners of and conducting a foundry, where parts of machinery were manufactured, a part of the foundry appliances being a machine for polishing castings, called a "rattlebox;" that this rattle-box was operated by means of a leather belt running upon two pulleys; that the castings were polished by being placed in this rattle-box; that plaintiff's duty was to put the castings into the box and remove them when finished, starting and stopping the machine by putting on and throwing off the belt; that on this date the belt had been improperly sewed together, "leaving a twist in the same, thereby rendering it very difficult and dangerous to adjust it on said top pulley, of all of which the defendants had full and complete notice; that defendants then and there, after having notice of the dangerous and imperfect condition of said belt, ordered, directed and instructed plaintiff to use it in said condition, informing plaintiff that the same was safe, sufficient and not dangerous;" that while plaintiff was, with due care on his part and without knowledge of any

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