The opinion
Allyn, J.,
(dissenting). — I do not concur in the opinion filed herein. While the result may be j ustified by the facts of the particular case, I cannot approve of certain of the instructions as set out in the opinion. I doubt greatly the propriety of the court assuming to take the question of negligence from the jury. The case should be very exceptional where this may be done at all. And in this case the result of this was to ignore all explanation offered and excuse presented as insufficient, on the sufficiency of which I feel the jury may much more safely pass than the court. But the language and manner of the instructions (being the instructions first quoted in the opinion) are certainly subject to criticism. In this class of cases (personal injury) jurors are, ordinarily, ready enough to see these features, and need no graphic picture of the scene in the charge. The court cannot too carefully avoid language which may imply to the jury possible feeling, or, in the most remote way (though not intended), influence them. The tendency of courts to refer to and comment on the evidence, and thus take from the jury that which is exclusively given to their keeping, cannot be too carefully avoided, or too strongly guarded against. In my judgment the choice of terms by the lower court was (that to which I have reference), unfortunate, and properly subject to criticism; while I am equally satisfied they were not so intended, and merely the result of oversight, incident to a necessarily hasty consideration, at the trial, of a very large number of instructions, as may not unfrequently happen.