Zukowsky v. Brown

Finley, J.

(concurring in the result) — I concur with the majority in remanding this case for a new trial because under the circumstances of this case, instructing the jury on contributory and comparative negligence was reversible error. I agree with the views of the majority, as I understand them, that the circumstances of negligence in this case were such as to merit an instruction to this effect, and to take the case past a nonsuit, to the jury. Such an instruction, and withholding instruction No. 3 on remand would, as stated by the majority, obviate any necessity for giving an instruction on “res ipsa loquitur” labeled as such. I cannot agree with the majority that the res ipsa instruction, even labeled as such, should never be given in any case because it seems to me the propriety of such an instruction must, of necessity, be judicially determined on a case-by-case basis.