(dissenting and concurring) :
I am compelled to dissent from that part of the prevailing opinion which holds that defendant is not entitled to a new trial for the reason that defendants’ requested instruction should have been given. It told the jury that “one who is guilty of contributory negligence may not recover from another for any injury suffered because if both parties were at fault in negligently causing an accident, the degree of negligence cannot be weighed by the jury.”
The trial court wrote in his own handwriting the notation, “given in substance.” However, at no time did the trial court ever tell the jury that plaintiff could not recover if her own negligence was a proximate cause of her injury. He did define “contributory negligence” and told the jury that they were not to attempt to determine which was guilty of the greater negligence.
The prevailing opinion admits that the requested instruction was proper but claims that the appellant waived the error by not making timely objection thereto. The *518facts surrounding the opportunity to make objections should be noted.
In the first place, the trial judge told counsel for defendant that he would give the instruction in question. In the second place, in order to hasten the end of the case, the court on stipulation of counsel, agreed to permit exceptions to be taken after the jury retired. In the third place, there was only one set of instructions read to the jury and that set was given to the jury, and consequently was not available for inspection by counsel.
It seems rather obvious that it would be difficult for counsel, listening to the reading of a long set of instructions, to recall just what was given, and this would especially be true where the judge had lulled counsel into a feeling of security by promising to give the substance of a particular instruction.
As soon as the verdict was rendered, the judge discharged the jury before counsel had access to the set of instructions which had been given to the jury.
At the time of argument for a new trial, the trial court stated:
I am a bit concerned about my own negligence apparently in failing to give the substance of Instruction Number 19, the effective contributory negligence and I don’t know what my thinking was on that ....
Counsel for appellant then stated:
[W]e, in order to keep the trial moving, reserved our right to make objections to those Instructions until a later date and in view of the fact also that without having the benefit of having the Court’s Instructions before us at the time that they were given so that it’s pretty hard for counsel to exclude negatives or to find gaps in what might have been given I would request that—
In reply thereto the court said:
You be given permission to do that? I think you reserved that right on the record at the time and certainly I wouldn’t hesitate when you can find some time with Jeanie [the court reporter] to take those. Certainly I would permit you both to.
Now, I agree that counsel cannot have an “ace in the hole” just in case he loses the verdict and then use it as a means of getting a new trial. He then is presumed to waive the error. But in the instant matter there was no waiver of the error of the court in failing to give the promised instruction; there was merely a justifiable oversight, and the trial court in an effort to be fair, thereafter granted counsel for appellant the right to note in the record his exception to the failure to give the instruction ; and counsel has placed his exception in the record. The court refused to give a new trial and by that refusal, I think he abused his discretion and committed reversible error.
I concur in what is said in the prevailing opinion about the affidavits from the jurors
HENRIOD, C. J., concurs in the views expressed in the opinion of ELLETT, J.