Daniels v. Weigum

[621]

PEEK, J.

Plaintiffs appeal from that portion of the judgment of the trial court in favor of the defendant David J. Weigum.

The record discloses that the action commenced in the lower court was for damages incurred by the wrongful death of Carrol E. Daniels. The plaintiffs are the surviving wife and minor children. Although in their answers both defendants individually denied negligence as alleged in the complaint, at the commencement of trial defendant John Kraai admitted his liability. The liability of the other defendant, David Weigum, was tried before a jury which returned a verdict in favor of the plaintiffs against John Kraai, but against plaintiffs in favor of defendant David Weigum.

The facts in evidence at the trial disclose that the automobile operated by John Kraai struck the rear of the Weigum vehicle and propelled it into the opposite lane of traffic, where it collided with the decedent’s oncoming vehicle. As Kraai’s liability was admitted, the sole issue at the trial was the negligence of Weigum. Although there was evidence introduced that Weigum was negligent, such evidence was not without conflict and hence, the jury was confronted with the historical problem of resolving the conflict and which problem was solely theirs to resolve.

Plaintiffs seek a reversal of the judgment on the single ground that the trial court erred in failing to give the following instruction to the jury:

“The law forbids you to attempt to classify negligence into degrees or grades or kinds, or to compare one instance of negligence with another and judge which is more deserving of reproof or excuse. If you should find that there was negligent conduct on the part of more than one person, you are not to attempt to determine which was guilty of the greater negligence, with a view to delivering a verdict in favor of, or to favor in any way, the one whose conduct was the less reprehensible. (If you find that any party to this action was, or all were, negligent, you will follow the court’s instructions in determining whether or not liability should attach, and do so without regard to how you might grade or compare the negligence involved, if permitted so to do.) ”

The requested instruction correctly states the law.