three Indiana cases, one Texas, and Morrison v. Lee, 13 N. D. 591, 102 N. W. 223. Ina different portion of the note appears the case of Udell v. Citizens’ Street Ry. Co., 152 Ind. 507, 52 N. E. 799, 71 Am. St. Rep. 336, which states another rule. In subdivision 8 of the syllabus it is stated that—
“Where a special verdict is requested, no instructions are proper, except such as are necessary to inform the jury as to the issues, the rule for weighing evidence, who has the burden of proof, and whatever else may be necessary to enable the jury clearly to understand its duties.”
This rule is the one adopted by this court in the case of Nygaard v. Northern Pacific Ry. Co., 178 N. W. 962. In that case, in an opinion written by Mr. Justice Bronson and concurred in by one of the other Justices and the writer hereof, the remaining Justices dissenting, the following language was used:
“This court has held that the questions for a special verdict should be plain, single, and direct; that they should contain only the ultimate conclusions of fact in controversy. Russell v. Meyer, 7 N. D. 335, 75 N. W. 262, 47 L. R. A. 637; Lathrop v. Railway Co., 23 N. D. 251, 136 N. W. 88; Swallow v. First State Bank, 35 N. D. 608, 161 N. W. 207. Plainly questions should not be submitted upon issues of law, or that call for conclusions of law. See note, 24 L. R. A. (N. S.) 30.
“In such cases, this court has held that it is not proper for the court to give general instructions upon the law, as in the case of a general verdict (Morrison v. Lee, 13 N. D. 591, 598, 102 N. W. 223); that the court should not charge the jury further than is necessary to assist in answering the questions submitted (Lathrop v. Railway Co., supra); that the jury are not required to find upon a fact established by the undisputed evidence (Swallow v. First State Bank, supra). These holdings, however, do not mean that the trial court may not instruct, within its discretion, as the circumstances require, concerning the issues upon the pleadings, the burden of proof, the legal rules for weighing and reconciling testimony, and also the law involved in material issues of facts submitted. See note 24 L. R. A. (N. S.) 62.”
A principle largely contrary to the one stated in Nygaard v. Northern Pacific Railway Co., supra, was stated in the case of Daniels v. Payne, 182 N. W. 1010, where, in an opinion written by Mr. Justice Birdzell and concurred in by two other members of the court, and in which dissents
