Sturcken v. Richland Oil Co.

Brailsford, Justice. In my judgment, the errors in the charge, which are expounded in the opinion of the court and which were carefully preserved for review on appeal, were misleading and confusing to the jury and, at least, with respect to the instructions on contributory negligence, were clearly prejudicial to the defendant. I am unable to agree that the defendant by its brief has abandoned or waived the errors in the charge, except as to the narrow issue which alone is resolved by the opinion of the court in affirming the judgment below. Prejudicial error is apparent when we consider that under the instructions the defense of contributory negligence may have been rejected by the jury on findings that both parties were guilty of causal negligence, but that the defendant was guilty of a higher degree or “grade” of negligence than was the plaintiff, even though neither party was found to be guilty of willfulness or wantonness. I, therefore, respectfully dissent. The foregoing was written as a dissent to the opinion drafted for the court by Justice Lewis. A majority of the court having concurred, this opinion becomes the prevailing opinion. Accordingly, the judgment appealed from is reversed. Bussey, J.,- and William L. Rhodes, Jr., Acting J., concur. Moss, C. J., and Lewis, J., dissent.