{dissenting). While I agree that the trial court’s instruction on degree of proof required was erroneous, I am equally convinced such error was not prejudicial in this case so as to require a reversal of the judgment and a new trial, as I cannot believe that if the trial court in instructing the jury had used the words "fair preponderance” instead of "clear preponderance,’’ the jury would have reached a different result in their verdict.
The same instruction as to degree of proof was given with respect to the issues of defendant’s negligence as was given as to the issues of plaintiff’s negligence,' and yet the jury did find the defendant negligent as well as the plaintiff.
If this were a close case on the facts, we would be forced to conclude that an erroneous instruction, such as given here, might be prejudicial. However, the jury attributed sixty-five per cent of the fault or negligence to the plaintiff, and only thirty-five per cent to the defendant, and no instruction with respect to burden of proof was given to the jury on the question of comparative negligence in the special verdict. The facts of the case well support this apportionment of negligence by the jury, and I would affirm the judgment.