Lindemann v. Randolph

I am unable to agree with the majority opinion. The majority opinion is based on the theory that it is the duty of the trial court upon its own motion to properly instruct the jury on the fundamental issues formed by the pleadings and the evidence, and that a failure to do so constitutes fundamental error. I think this is a correct rule of law. However, I am of the opinion that such rule is inapplicable under the pleadings and evidence in the present case, especially under the theory and manner in which the case was tried.

Plaintiff’s petition alleges, inter alia, that while riding as a guest…