(dissenting).
I am unable to agree with the final conclusion of my colleagues in their opinion in this case.
The majority opinion recognizes that under the facts shown by the evidence the ■question of whether the defendant was negligent and, if negligent, whether his negligence was the proximate cause of the injuries to the plaintiffs were questions of fact for the jury to decide under proper instruction by the trial court.
While impliedly admitting that the driver of the plaintiff’s car was negligent, counsel for the plaintiffs insist that they were entitled to have the jury instructed that if the injuries were caused by the concurrent negligence of Allers and the defendant, the defendant was liable to the same extent as though his negligence had been the sole cause of the injuries. The majority opinion admits that Illinois law recognizes the principle of such liability for concurrent negligence.
The majority opinion also recognizes the fact that each party is entitled to have his theory of the case presented to the jury by proper instructions, but the majority opinion says that the instructions are to be considered as a whole and if “when viewed in the light of the evidence, show no- tendency to confuse or mislead the jury with respect to the principle of law applicable to the issues, then minor irregularities, when considered as an abstract proposition of law, should not be permitted to prevail, where it appears that the complaining party’s rights have not thereby been prejudiced.” I agree with this statement of law. but I do not believe that it is applicable to the instructions in this case.
After giving the jury instructions as to their duty as jurors, the trial court told the jury: “This was what is known as a personal injury law suit. It’s [sic] caused by the collision of two automobiles. And in determining the facts here you must determine which automobile was the proximate cause of the injury of these plaintiffs, together with certain other instructions that I intend to read to you that apply in cases of this sort.” Another paragraph of the instructions to the jury said: “ * * * you have heard the facts, you have heard the different persons testify what they saw and what they know about it, and from those facts you must determine whether or not this defendant, through negligence, was the cause of the injury. That you must do because, if he was not through his own negligence the proximate cause of this injury, then, of course, these plaintiffs, or any one of them, are not entitled to recover, so that is the first issue that should come before you under these instructions.” Continuing, the court also told the jury: “Then if after you have heard that issue, that he was by his negligence the proximte cause of the injury, then you must further determine * * (Our emphasis.) In two other instances the court again told the jury that for the plaintiffs to recover the jury must find that the defendant was' the proximate cause of the injury.
In my opinion these instructions were most likely to confuse and mislead the jury into thinking that their duty was to determine which one of the two drivers negligently caused the collision and that they were not permitted to find that the defendant was liable if the negligence of both drivers contributed to the collision and the resulting injuries. Counsel for the defendant in oral argument in this court admitted that an instruction telling the jury to determine “which automobile was the proximate cause” was “technically wrong,” but he said he thought that the giving of these instructions had been cured by other instructions.
The majority opinion points out that the jury was also told that if they .believed that the defendant was negligent and his negligence was a proximate cause of the accident they must find for the plaintiffs. The *794giving of a correct instruction which contradicts a prejudicially incorrect instruction does not cure . the latter. Bald v. Nuernberger, 267 Ill. 616, 620, 108 N.E. 724; Ratner v. Chicago City Ry. Co., 233 Ill. 169, 174, 84 N.E. 201; Metropolitan Life Insurance Co. v. Alterovitz, 214 Ind. 186, 205, 14 N.E.2d 570, 117 A.L.R. 770.
For these reasons, I would reverse and remand.