(dissenting)—I dissent from that portion of the majority opinion which holds the trial court committed error in refusing to give the following instruction:
If you find that the State of Washington posted signs reasonably adequate to warn users of this highway of the condition existing at the place of this accident, you shall find in favor of the defendant.
In my opinion this instruction was properly refused.
The trial court properly instructed that:
A state has a duty to exercise ordinary care in the repair and maintenance of its public highways to keep them in such a condition that they are reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety.
It is evident from the plaintiff’s verdict that the jury found the state violated its duty and was negligent. Adequacy of the warning sign is only one factor under all of the conditions and circumstances to be considered by the jury in deciding whether the state exercised ordinary care to make the highway reasonably safe. Defendant’s proposed instruction would make adequacy of the warning sign the sole criterion for determining the state’s liability. In this respect it was improper. This was the only instruction on warning devices requested by either party.
It is axiomatic that the trial court is not required to rewrite or give proposed instructions which are unduly slanted or which otherwise incorrectly state the law. [Cases cited.]
Provins v. Bevis, 70 Wn.2d 131, 140, 422 P.2d 505 (1967). The majority opinion in effect holds that if adequate signs are posted warning of the danger, the driver, as well as the passenger, is automatically deprived of recovery for the state’s negligence.
There is little doubt that 'an adequate sign warning a *833driver of a dangerous condition would probably cut off liability to him because of his contributory negligence in failing to heed the warning. Both would be negligent. The negligence of the state does not disappear. The mere posting of a sign does not remove the state’s negligence unless the jury could find it was not a proximate cause of the accident, which they did not do in this case. The negligence of the driver, if any, in this case, could not be imputed to the plaintiff passenger. Plaintiff could bring an action against either or both. The foregoing are mere applications of well-known principles of negligence law. In my opinion, logic cannot support a conclusion that an adequate sign automatically relieves the state from liability to passengers for negligence in repairing and maintaining the highways. The requested instruction was properly refused.
Further, when a party can adequately argue his theory of the case from the instructions given, it is not necessary for the trial court to buttress jury argument with specific instructions. Holmquist v. Grant County, 54 Wn.2d 376, 378, 340 P.2d 788 (1959). The duty imposed upon the state is to exercise ordinary care in the repair and maintenance of its public highways, keeping them in such condition that they are reasonably safe for ordinary travel by persons using them in a proper manner and exercising ordinary care for their own safety. Provins v. Bevis, supra. The jury was so instructed. They were also instructed on the elements of negligence including proximate cause. These instructions were broad enough for the state to argue its theory that the warning signs were adequate and therefore the state’s negligence, if any, was not a proximate cause of the accident. Counsel for the state did so argue. The trial judge was obliged to do no more.
I would affirm the judgment.
Petition for rehearing denied February 20, 1970.