dissenting.
I disagree with the majority’s analysis by which it affirms the judgment in this case. The majority concludes that any error in the failure of the trial court to give appellant-plaintiff’s written request to charge was harmless, based upon an asserted distinction between “contributory negligence” and “comparative negligence.” There is, of course, a distinction between the defense of “contributory negligence,” which bars a plaintiff’s recovery, and the principle of “comparative negligence,” which may merely diminish a plaintiff’s recovery. Whatley v. Henry, 65 Ga. App. 668, 673 (6) (16 SE2d 214) (1941). If appellant’s refused request to charge had related solely to appellee-defendant’s burden of proving the defense of “contributory negligence,” I could agree with the majority’s harmless error analysis because the verdict in appellant’s favor establishes that the lack of such a charge clearly did not mislead the jury as to liability. Butler v. Anderson, 163 Ga. App. 547 (2) (295 SE2d 216) (1982); Jernigan v. Carmichael, 145 Ga. App. 560, 561 (2) (244 SE2d 92) (1978).
However, appellant’s refused request to charge did not relate *456solely to appellee’s burden of proving the defense of “contributory negligence.” The refused request related to appellee’s “burden of proving [appellant’s] contributory negligence” in general. In my opinion, this general request was sufficient to encompass appellee’s burden of proof as to both the defense of “contributory negligence” and the principle of “comparative negligence,” for it is the asserted negligence attributed to and contributed by appellant upon which appel-lee ultimately relies in either event. Although there is a distinction between the defense of “contributory negligence” and the principle of “comparative negligence,” “the term ‘contributory’ negligence has been construed by the courts as synonymous with what is perhaps more accurately termed ‘comparative negligence’ or the rule of diminution of damages, where the plaintiff’s negligence is not such as to wholly bar a recovery. . . .” (Emphasis supplied.) Lamon v. Perry, 33 Ga. App. 248, 252 (4) (125 SE 907) (1924). It is obviously in this synonymous sense that the general term “contributory negligence” was employed in appellant’s refused request.
In the instant case, the trial court charged the jury as follows: “I charge you that should you find in this case that there was negligence by both drivers of the vehicles which was concurrent and contributed to proximately cause the injury to the plaintiff, but you find that the plaintiff’s negligence, if any, was less than the defendant driver’s negligence, if any, a recovery by the plaintiff would not be barred, but his damages should be diminished to an amount proportioned to that amount of fault attributable to him. If the negligence upon the plaintiff’s part, if you find he was negligent, was equal to or greater than the defendant’s negligence, if you find he was, then the plaintiff would not be entitled to recover. And if the plaintiff’s negligence was the sole cause of his injury and damage, if he was negligent, then he could not recover.” As can be seen, the trial court did not limit its instructions to the defense of “contributory negligence,” but also instructed on the principle of “comparative negligence.”
Accordingly, in the absence of appellant’s refused request, the jury was never specifically instructed that, insofar as appellant’s alleged negligence was relied upon either as a bar to or as a limitation on the amount of his recovery, the burden of proof was on appellee. Although the error in failing to give this refused request was certainly harmless to the extent that appellant’s alleged negligence was relied upon as a total bar to his recovery, it cannot be said to be harmless insofar as appellant’s alleged negligence was relied upon to diminish the amount of his recovery. In the absence of the requested instruction, the jury may well have erroneously concluded that appellant did not meet the burden of disproving his comparative negligence and, based upon that erroneous conclusion, may have awarded a reduced recovery because of his failure to have satisfied a burden of proof that *457he was never obligated to meet. It cannot be established that the general verdict in favor of appellant was not diminished in some amount and was, therefore, unaffected by the erroneous failure to give the refused request. It follows that the error is not harmless and that a new trial is mandated. Accordingly, I must respectfully dissent.
Decided March 15, 1991 Rehearing denied March 29, 1991 Reynolds & McArthur, Charles M. Cork III, for appellant. Jones, Cork & Miller, Wallace Miller III, Rufus D. Sams III, for appellees.