Jenkins v. Keller

BILLINGS, Judge.

Damage suit and jury verdict for defendant. The trial court granted plaintiffs’ motion for a new trial because the contributory negligence instruction omitted “the use of” from MAI 17.04 preceding the phrase “the highest degree of care.” Defendant contends the omission did not result in prejudicial error and avers: (1) plaintiffs failed to make a submissible case of negligence, *167and (2) plaintiff Zona Jenkins was guilty of contributory negligence as a matter of law. We affirm the action of the trial court.

Instruction 4, given at defendant’s request, was as follows:

“Your verdict…