Johnson v. Wade

The Honorable TOM CORNISH was appointed the special judge to fill the vacancy created by the death of WILLIAMS, J.

I agree with the majority on the accuracy of Instruction No. 5. Third party negligence does not constitute an affirmative defense; it merely controverts one of plaintiff’s essential allegations.

I respectfully dissent, however, from the majority’s treatment of other instructions. Standing alone, Instruction No. 5 is correct, but when coupled with Instruction No. 8, the instructions convey the misleading impression that the jury must make a choice as to whether defendant or a third…