Smith v. Wetherell

I must respectfully dissent because, in my opinion, the trial court erred in failing to instruct that if plaintiff’s injuries were caused by the negligence of both drivers she would still be entitled to prevail against defendants and thus failed to inform the jury of the rule of law that any negligence by the driver of the car in which the plaintiff was riding as a passenger was not imputable to her.

The majority says that the instruction given by the trial court is “literally correct”; that “this court has granted the trial court considerable discretion * * * on the effect of a third party’s…