Concurring Opinion
Lybrook, J.— While I concur with my esteemed colleague, Judge Staton, in the result he has reached, we arrive at this common destination via different paths.
Instruction No. 14 seems erroneous to the writer for several reasons enumerated later in this opinion. None of these reasons, however, have their roots in the doctrine of comparative negligence, and I confess a total inability to apply the comparative negligence theory, or any aspect of it, to the problem at hand.
That comparative negligence has been and remains banned under Indiana law, cannot be doubted. Hoesell v. Cain (1944), 222 Ind. 830, 53 N.E.2d 165. Lewis v. Mackley (1951), 122 Ind. App. 247, 99 N.E.2d 442.
In Indianapolis Traction and Terminal Company v. Croly (1911), 54 Ind. App. 566, 96 N.E. 973, the court said:
“It may also be stated that the laws of comparative negligence formerly recognized in Illinois has never been recognized or applied by the courts of this State. If a plaintiff is negligent to any degree and such negligence proximately contributes to his injury, he cannot recover on account of the negligence of the defendant, and it matters not that his negligence may have been slight as compared with more gross and reprehensible negligence on the part of the defendant.”
In Pawlisch v. Atkins (1932), 96 Ind. App. 132, 182 N.E. 636 the Court, as in the case at bar, was concerned with an incorrect instruction. The Pawlisch Court determined that the trial court erred in instructing the jury that plaintiff would be guilty of contributory negligence if he “materially contributed to produce the injuries complained of.” (Emphasis added.) In reversing the judgment this Court said:
*417“It has long been the rule in this state and in many other states that there are no degrees of negligence or of contributory negligence in cases of the kind under consideration. This is the common-law rule based upon sound reason and, as we believe, is followed by a majority of the states.”
In the case at bar Instruction No. 14 contained several infirmities, the most prominent being that it invited the jury to engage in pure speculation as to what injuries, if any, would have been prevented had plaintiff buckled his seat belt. The possibility of speculation was heightened by a lack of evidence as to what the extent of the injuries might have been had the seat belt been fastened. The instruction also contains language which is misleading in that the jury was asked to “determine in accordance with all the Court’s instructions whether or not plaintiff’s failure to use the seat belt was negligence.” When taken out of context this phrase might well mislead a lay juror into believing that plaintiff was guilty of contributory negligence because the belt was not fastened, although, admittedly there is other language in the instruction which attempts to confine the failure to use the seat belt to the matter of damages. Further, we must not lose sight of the fact that Birdsong had stopped, and was waiting to make a left turn when he was struck from the rear. Obviously, the absence of a seat belt could not have been the proximate or a contributing cause of the collision.
In Kavanagh v. Butorac (1966), 140 Ind. App. 139, 221 N.E.2d 824, an attempt was made to apply the theory of avoidable consequences to lessen damages in a case where a passenger in an automobile failed to fasten a seat belt. In rejecting the application of this doctrine, the court observed :
“Although the theory of avoidable consequences has merit, and failure to use the belts may come into action after the proximate cause, we have no authorities which we believe permit us to invoke that doctrine under the evidence here to avoid or to lessen the damage. We recognize possibility of the doctrine applying in some future date and in some matter where the circumstances are clearer than the instant *418case in showing that some part of the injury would not have occurred except for the fact that plaintiff failed to avoid the consequence of the tort by not fastening his seat belt.”
As in Kavanagh, supra, there was insufficient evidence in the case at bar to permit the application of such a doctrine. In respect for Kavanagh the writer is reluctant to state that a correct instruction on this subject can never be given. Hopefully the drafting of such an instruction will be attempted by a legal mind possessing more craftsmanship and ingenuity than that of the writer and even then only in a totally different set of evidentiary circumstances than we have in the case before us.
For the above reasons I would reverse and concur in the result reached by Judge Staton.