Nelson v. Blake

(dissenting)—I accept the majority’s thesis that the issue of contributory negligence, when properly pleaded, if supported by substantial evidence, must be submitted to the jury. In my view, however, this case falls not under that principle, but rather within the well-established rules recently restated in Boley v. Larson, 69 Wn.2d 621, 419 P.2d 579 (1966), that

Contributory negligence is an affirmative defense; the burden of proving it rests on the defendant. If there is no evidence of contributory negligence, it is an error of law to submit the issue to the jury.

The foregoing principle rests…