Roberts v. Fisher ( 1969 )

Mr. Chief Justice McWilliams

dissenting:

I dissent because I disagree with the majority that it was proper for the trial court to submit to the jury the issue of contributory negligence on the part of the plaintiff, Gertraude Roberts. In my view there is no evidence upon which the jury, on any rational basis, could have found Mrs. Roberts guilty of contributory negligence. Hence, in my view the only issues that should have been submitted to the jury were the issues of the defendant’s negligence and damages.

The majority conclude that the issue of contributory negligence somehow posed a disputed issue of fact which was to be resolved by the jury. This conclusion is apparently based on the premise that Gertraude Roberts was conceivably negligent because of: (1) her failure to maintain a sharp 360° lookout for 12 year olds riding racing bicycles on the sidewalk; or (2) her failure to either stop quickly or jump faster. I am completely unimpressed with this exceedingly tenuous line of reasoning.