(concurring). I concur in the final result reached by the Majority in this case, but I have pursued a slightly different method of reasoning to arrive at such conclusion; and, for whatever benefit it may be to the litigants and the Bar generally, I now state my method of reasoning.
In Point Four the Majority Opinion says: “After careful study of the record we find no substantial evidence to justify submitting to the jury the question of contributory negligence on the part of any one of the boys. ’ ’ I think that this issue of the contributory negligence of the boys should have been submitted to the jury in the interrogatories requested by the appellants. The appellants pleaded the defense of contributory negligence on the part of the boys; there was evidence that the boys and the driver of the car (Woolsey) had been drinking together; there was evidence that one of the boys urged Woolsey to see how fast the car would go; there was evidence that Woolsey then began driving the car 85 miles per hour; there was no evidence that any of the boys-ever protested such speed; and there was evidence that the car was going at a very rapid rate of speed at the time it hit the trailer. These items of evidence, I think, were sufficient to require the Court to submit to the jury the question of whether the boys were guilty of contributory negligence; so I differ with the reasoning of the Majority on this point.
However, I arrive at the same conclusion that the Majority has reached, because I think that any error in failing to submit to the jury the issue of the contributory negligence of the boys was cured when the Trial Court reduced the verdicts by 20%, which was the amount of the contributory negligence of Woolsey. Certainly the occupants of the car could not have been guilty of a greater degree of contributory negligence than was the driver; so in reducing the verdicts the Trial Court cured the error in failing to submit to the jury the issue of the contributory negligence of the boys.
The jury verdict for Campbell was $20,000.00; the Trial Court reduced this 20% and rendered judgment for Campbell for $16,000.00. The jury verdict for the Tip-tons was $12,500.00; the Trial Court reduced this 20% and the judgment was for $10,000.00. The jury verdict for Mrs. Roughley was $12,500.00; the Trial Court reduced this 20% and the judgment was for $10,000.00. Thus the Trial Court reduced the verdicts by 20% which was the percentage of contributory negligence the jury found to be attributed to Woolsey, the driver of the car. The appellees are in no good position to claim that this reduction of 20% was excessive, since it was at their insistence that the issue of contributory negligence of the occupants of the car was not submitted to the jury. Therefore, my conclusion is that there should be affirmance of the case on direct appeal and cross appeal.