were filed by Justices Bronson and Grace, the following language was there used:
“In submitting a case to a jury for a special verdict, it has been frequently held to be error to give instructions indicating how the answer to certain questions will affect the outcome of the litigation. Morrison v. Lee, 13 N. D. 591, 102 N. W. 223, and cases therein cited; 27 R. C. L. 874, 24 L. R. A. (N. S.) note, pp. 62 and 70.
“Tt is the manifest aim of the special verdict statute (§§ 7632 and 7633, C. L. 1913) to enable litigants to obtain the judgment of the jury as to the facts in a case, disassociated from matters of law. As they are not to apply the law to the facts, instructions as to the law can at best serve no useful purpose.
“While it may be difficult to so frame questions for a special verdict and to give appropriate instructions upon them in such a way as to obscure to the average intelligent juror the effect of the answers, it is scarcely possible to conceive of a more flagrant violation of the policy of the special verdict statute than that which would result from countenancing the full statement of the allegations of fact on the respective sides of the principal provisions of law upon which reliance is placed for recovery.”
It is not difficult to perceive that the rule stated in the case of Nygaard v. Northern Pacific Ry. Co., and that stated in Daniels v. Payne, supra, with reference to a special verdict, are in direct conflict. There is no possibility of harmonizing them. To attempt to do so would be accompanied with about as much success as to attempt mixing oil and water.
We are of the opinion that the rule stated in Nygaard v. Northern Pacific Ry. Co., regarding a special verdict, is as nearly the correct rule as can be stated; it concededly being a subject-matter which gives rise to numberless technicalities in connection with cases where it is used. And skilled and astute attorneys, and attorneys in general, find in its use a convenient means by which to introduce error into the record, if they are concerned with the weaker side of the case, or in one in which they must depend largely upon technical practice and procedure to bring a measure of success. Perhaps the technicalities which have prevailed in the use of the special verdict are nearing an end since the enactment of chap. 132, Session Laws of 1921, which makes it discretionary with the trial judge whether he shall order a special verdict in cases where an appli-
