(dissenting in part) — I agree with the majority that the error in the instruction on contributory negligence requires reversal as to appellant Poston. However, as noted by the majority, appellants also contend that they are entitled to a new trial relative to the claim on behalf of the minor child, Peggy Poston. This is on the theory that, as a practical matter, the erroneous instruction regarding contributory negligence of the father may well have affected the jury in determining the damages awarded to the minor daughter.
CR 59 provides that a new trial may be granted as to all or any of the parties and all or part of the issues. ROA 16 indicates the similar power of this court, which was exercised as early as Auwarter v. Kroll, 70 Wash. 179, 140 P. 326 (1914).
The test for a new trial in this situation has been described as follows:
We recognize that there are situations, especially where the evidence as to damages is largely objective and the extent thereof is not seriously challenged on the appeal, where a new trial could well be limited to the issue of liability. However, in the present case, the details of the injury sustained by the plaintiff-driver and the symptoms thereof are largely subjective and supplied by him. The proof as to liability and as to most of the damages comes from the same source and should be evaluated by the same jury.
Bauman v. Complita, 66 Wn.2d 496, 502, 403 P.2d 347, 351 (1965) (Hill, J.).
3 W. Barron & A. Holtzoff, Federal Practice and Procedure § 1307 (1958), describes the practice under the parallel federal rule as follows:
[I]f it is apparent from the record that those as against whom judgment would otherwise be proper might have been injured by reason of the trial having been against all the parties, it is the duty of the court to set aside the verdict as well as the judgment and award a new trial as against those properly retained as defendants in the case.
*342The caution is repeatedly stated in the case law that a new trial on less than all the issues is not proper unless the issue to be retried is distinct and separable and the error which has crept into one element of the verdict did not in any way affect the determination of any other issue. In particular, before ordering a new trial on the issue of damages alone where they are claimed to be inadequate, the court should be sure that the inadequate verdict was not the result of a compromise with jurors who would have preferred to find defendant not liable.
(Italics mine).
This court has the authority to limit issues on retrial in those cases where it clearly appears that the original issues were distinct and separate from each other and that justice does not require resubmission of the whole case to the jury. Sage v. Northern Pac. Ry., 62 Wn.2d 6, 380 P.2d 856 (1963) (damages and liability as between multiple defendants; full retrial); Shaw v. Browning, 59 Wn.2d 133, 367 P.2d 17 (1961) (inadequate verdict; misinstruction as to contributory negligence; full retrial); Zerr v. Spokane City Lines, Inc., 58 Wn.2d 196, 361 P.2d 752 (1961) (contributory negligence erroneously taken from jury; full retrial).
Apart from France v. Peck, 71 Wn.2d 592, 430 P.2d 513 (1967), the above cases seem to indicate that if plaintiff seeks and recovers general damages based upon subjective evidence of injury, and a retrial is then necessitated by error as to contributory negligence, that both damages and liability must be submitted to the jury on retrial. As the remarks in France v. Peck, supra, are dictum, we do not view them as modifying the test set out by Justice Hill in Bauman v. Complita, supra.7
As the majority notes, the evidence of Peggy Poston’s *343injury was almost entirely subjective.8 The difficulty in the instant case arises from the circumstance that any injury involved was suffered by Peggy rather than by her arguably contributorially negligent father. The majority, however, states that “[t]he only conceivable basis for another trial on her behalf on the issue of general damages would be that the jury’s award was inadequate.” I disagree. This test focuses solely on the award received by Peggy without any consideration of whether that award may have been affected by erroneous instruction. An analysis of whether the jury’s award was inadequate would be sufficient if Peggy was the sole plaintiff. But she is not. An examination of the adequacy of the award must take into consideration the likelihood of any effect upon the award by the erroneous instruction.
It is dangerously dubious reasoning to say that, because contributory negligence of the parents was legally irrelevant as to any recovery by the minor child, the amount or size of that recovery could not be affected by erroneous instructions as to contributory negligence on the part of her father.
Both our own and the federal case authority on the new trial issue recognize that the possibility of a compromise verdict is sufficient to require that the new trial be granted as to all issues. Myers v. Smith, 51 Wn.2d 700, 321 P.2d 551 (1958); 3 W. Barron & A. Holtzoff, supra at § 1307.
A compromise verdict is, in the abstract theory of negligent torts, a logical impossibility. One either is or is not negligent or contributorially negligent with respect to specified actions, persons, and facts. Yet, so long as it is not a quotient verdict, a compromise verdict cannot be impeached. Oliver v. Taylor, 119 Wash. 190, 205 P. 746 (1922). Juries are allowed to reach results which are not entirely in accord with the niceties of negligence theory, and the rules which allow them to reach such results are also rules *344of law — rules of equal weight and longer standing than those governing negligent torts.
If the jury in fact had used any of several entirely erroneous methods in establishing Peggy Poston’s damages, their verdict would be unimpeachable. See Gardner v. Malone, 60 Wn.2d 836, 376 P.2d 651 (1962). The rules which surround the verdict of a jury and its review are not fortuities. They express legal policies of substance, protecting an institution guaranteed to the parties by the state constitution. Const, art. 1, § 21. Learned treatises have been written for the purpose of defending the propriety of such jury practices as discounting damages by fault, regardless of the law of contributory negligence. The power of the jury to set general damages is interfered with only if the award is so large or small as “unmistakably to indicate that the verdict must have been the result of passion or prejudice.” CR 59.
In short, the law assumes that a jury, properly instructed, will supply to the parties something which the theoretical branches of substantive law are not capable of providing.
The jury in this case was not properly instructed. It was misinstructed. The relationships of passenger and driver and child and parent which existed between Peggy Poston and her father establish reason for a commonsense belief and conclusion that the jury could quite likely have indulged in some discounting of her damages in the light of contentions as to her father’s negligence, regardless of the nicety of legal theory to the contrary. Despite the attempts of the majority to analyze the subjective evidence of the injury, the verdict which the jury in fact arrived at is not of such a size as to indicate clearly that some discounting was not engaged in.
The rule which we have established hitherto is that a partial new trial may be ordered only when the issues are clearly distinct and separate from each other and justice does not require resubmission of the whole case to the jury. The circumstances of this case, in which arguably a layman would impute negligence although the law does not, lead to *345a conclusion that justice requires the submission of the entire case to a new jury which has been properly instructed as to all aspects of the case.
I would set aside the verdict as to Peggy Poston, reverse the judgment in its entirety, and remand the case for a new trial.
Hunter, C. J., and Rosellini, J., concur with Finley, J.
The issue of a new trial on all aspects was first suggested to the court during the oral argument of France v. Peck, supra. No error was assigned to the proof or the extent of damages, nor was the portion of the record concerning them before the court. Such procedural infirmities are not present in the instant case. The appeal is taken from all portions of the judgment; the new trial denial is challenged in toto; and the issue is argued in appellant’s brief. All testimony relevant to the damages is included in the record.
The evidence and testimony relating to the injury suffered by Peggy Poston has been extensively analyzed by the majority. I do not question that, standing alone, the evidence would support a verdict of $500 without unmistakably indicating passion or prejudice.