dissenting.
I respectfully dissent from the holding that the error in the burden of proof instruction was harmless.
The opinion reasons that the jury, confronted with the sentence, “The burden of causing you to believe a proposition of fact is upon the party whose claim depends upon that proposition,” would be directed to the “if you believe” language of the contributory negligence instruction. The opinion asserts the word “claim” would direct the jury to the “claim” of contributory negligence.
This reasoning ignores the possibility that the jury read “if you believe” in the context of the third finding of the contributory negligence instruction, viz: “[I]f you believe ... failure of plaintiff ... to use ordinary care directly caused or contributed to cause.” That “claim” is one which is also part of the plaintiffs’ submission. Paragraph Third of plaintiffs’ verdict director reads:
THIRD, Plaintiff Cecil Leonard did not know and by using ordinary care could not have discovered that such condition was not reasonably safe.
(Emphasis supplied). If, as the majority says, the jury confronted the issue of plaintiffs’ exercise of “ordinary care,” which was the only real issue in the case, and then resorted to the burden of proof instruction, it may well have been confused. “Ordinary care” appears in both instructions, and since it does, they may well have assumed that, since it appeared first in the plaintiffs’ instruction and he was the “claimant,” the burden was on him under both instructions. The majority says that the words “if you believe” “plainly refer” to the contributory negligence instruction. Plaintiff’s claim in this ease also depended upon the jury’s finding that the plaintiff was using ordinary care. No place in these instructions was the jury told the unquestioned law of the case — that the burden of proof as to contributory negligence was upon the defendant.
The assertion of the majority opinion that the jury must have understood the meaning of “claim” is pure speculation. It is as easy to speculate that they believed claim meant *169‘a demand for something due or believed to be due” or “a right to something,” Webster’s New Collegiate Dictionary (G & C Merriam Co. 1979). Any such common interpretation would have led them to believe that the burden was upon plaintiff, because “claim” in that sense would have referred to plaintiffs’ cause of action.
If the majority opinion is correct, the directions of MAI are meaningless with respect to the burden of proof instruction. In every case involving an affirmative defense in which the phrase “or defense” is omitted, the same reasoning would apply. Every affirmative defense will contain the “if you believe” language and permit the court to say that the jury must have read that language as asserting a “claim” that would direct the jury to apply the burden of proof instruction correctly.
I would affirm the trial court’s order granting a new trial.