dissenting:
I respectfully dissent. I agree that Oklahoma Uniform Jury Instructions (OUJI) should, be given when the facts in evidence so indicate, I cannot, however, accede to the view expressed today that the OUJIs should necessarily be given to the exclusion of other instructions which more accurately state the law in Oklahohoma and which, as in this casé, are instructions this Court has consistently recognized as proper when dealing with the degree of care required for the safety of a child. Nor can I accept the majority’s apparent reliance on committee comments to the instructions as support for the result pronounced today.
Title 12, O.S.Supp.1988, § 577.2, (Fn. 6 of the majority opiinion) acknowledges the necessity for discretion by a trial judge when instructing the jury. The majority disregards a crucial statutory qualification when it states that the trial court “shall ” use a OUJI instruction, (emphasis theirs). The statute continues, as the majority recognized yet did not emphasize, that a OUJI shall be used “unless the court determines that it does not accurately state the law." This Court’s order adopting the Uniform Instructions uses that statutory language. Instruction No. 10.5 of OUJI-CIV does not accurately state the applicable law with respect to the degree of care required for the safety of a child.
The long settled common law rule in Oklahoma is that a child of tender years cannot be guilty of contributory negligence. Hampton v. Hammons, Okl, 743 P.2d 1053, 1061 (1987); Connor v. Houtman, Okl., 350 P.2d 311 (1960). The age parameters wherein children are deemed to be of tender years is equally well settled and undisputed. A child under the age of seven years or, in the absence of evidence establishing capacity, one between the ages of seven and fourteen years, is presumed incapable of negligence. See: Ramage Mining Co. v. Thomas, 172 Okl. 24, 44 P.2d 19, 23 (1935); City of Shawnee v. Cheek, 41 Okl. 227, 137 P. 724 (1913). See also: Strong v. Allen, 768 P.2d 369, 372 n. 1 (1989) (dissenting opinion by Opala, V.C.J.). The Oklahoma Uniform Jury Instructions were not adopted as a means to eviscerate the common law rules in Oklahoma. Judge William Means of the Court of Appeals, *467Tulsa Division, was correct when in this case he wrote:
“On appeal plaintiff argues that the court erred in refusing her requested instructions Nos. 16 and 17, concerning the standard of care of drivers toward children. Plaintiffs requested instruction were based on Bready v. Tipton, Okl., 407 P.2d 194 (1965), and Lawrence v. Eicher, Okl., 271 P.2d 320, 323 (1954). These instructions correctly state the law in Oklahoma regarding the standard of care of drivers toward children. As the Bready court noted, ‘children are not in the same category as normal adults.’ 407 P.2d at 199. Thus ‘the law imposes upon a motorist the duty to exercise in behalf of such child’ a ‘degree of extreme caution.’ Id.”
“The trial court committed reversible error in failing to instruct the jury concerning the appropriate standard of care. While the court’s instructions regarding negligence and comparative negligence were correct statements of law, these instructions were imcomplete without a statement concerning the duty of motorists toward children. Thus, the failure of the trial court to give any instruction similar to Plaintiff’s requested instructions Nos. 16 and 17 was error.”
Blind, dogmatic, dedication to a set of Uniform Jury Instructions in disregard of settled principles of common law does, in my view, a grave disservice to both the concept of a system of uniformity in decision making and to our system of justice under law in general. This is also why I am troubled by the majority’s apparent deference to the committee comments which accompany the OUJI in question. While, in the narrowest sense, the questions decided today are of first impression in Oklahoma, such is not the case in neighboring jurisdictions. The decisions from those jurisdictions could have provided the majority with some helpful insight.
Not too recently, the Supreme Court of New Mexico was called upon to examine that state’s uniform instructions in an ana-lagous context in Jewell v. Seidenberg, 82 N.M. 120, 477 P.2d 296 (1970). In Jewell, the issue was what effect the failure to use a uniform instruction had on the appellant’s trial. There, the court conducted a thorough analysis of cases from other jurisdictions and recognized that, while the New Mexico uniform instructions were mandatory, that court “did not intend to place form over substance in adopting the instructions”, 477 P.2d at 300; the instructions were to be a standard by which the court determined whether or not there had been a fair trial. Other jurisdictions with mandatory uniform jury instructions have reached similar results with similar reasoning. See e.g.: Florida East Coast Railway Co. v. McKinney, 227 So.2d 99 (Fla.App.1969); Adkins v. Kelley, 244 Ark. 199, 424 S.W.2d 373 (1968); Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157, 159 (1968).
More recently, the New Mexico courts observed that Committee Comments were of no relevance in deciding whether a uniform instruction should be modified: “[cjommittee comments are not the equivalents of the Directions for Use.” O’Hare v. Valley Utilities, Inc., 89 N.M. 105, 547 P.2d 1147 (App.1976), rev’d in part on other grounds: 89 N.M. 262, 550 P.2d 274 (1976). The majority’s reliance on committee comments in reaching its result here is misplaced. Today’s pronouncement elevates rule by committee over the rule of Common Law. I feel compelled to note also the inherent inconsistency in that very committee comment. On one hand, it is stated that no instruction should be given, that ordinary care is the proper standard. However, the very next sentence recognizes a duty to “exercise greater care for their protection.”
The very statute which authorizes the use of Uniform Jury Instructions in Oklahoma recognizes that there may be inherent inadequacies in those instructions when applied to various cases. The plaintiff’s proposed instructions are the proper, accurate, statements of Oklahoma Law regarding the duty owed by drivers to children of tender years. Therefore, I would deny cer-tiorari in this case which would leave the matter remanded for a new trial consistent with the opinion of the Court of Appeals.
*468I am authorized to state that Justice ALMA WILSON joins with the views expressed in this dissenting opinion.