dissenting.
I dissent because I believe the trial court erred in refusing the Handrows’ tendered instructions Nos. 35 and 36.1
In reviewing the refusal to give tendered instructions this court considers the following: (1) whether the tendered instruction is a correct statement of the law; (2) whether the instruction is supported by the evidence; (3) whether the substance of the instruction is covered by other instructions; and (4) whether the refusal to give the instruction resulted in prejudice to the party who tendered it. City of Lake Station v. Rogers (1986), Ind.App., 500 N.E.2d 235, 240.
Handrows’ tendered instruction No. 35 read as follows:
A passenger has no duty to keep a lookout. A passenger’s only duty is to warn of an impending danger if he or she observes that the driver is not aware.of it.
This is a correct statement of the law. In Gates v. Rosenogle (1983), Ind.App., 452 N.E.2d 467, 474 this court explained:
*858While a passenger has a duty to exercise reasonable care, our Supreme Court has expressly recognized that where the passenger has no control over the management of the vehicle, he or she may ordinarily rely upon the assumption that the driver will exercise proper care and caution and need not keep a lookout in order to satisfy that duty. Lindley v. Sink (1940), 218 Ind. 1, 18, 30 N.E.2d 456. See also, Kavanagh v. Butorac (1966), 140 Ind.App. 139, 221 N.E.2d 824, and Horton v. Sater (1966), 140 Ind.App. 1, 221 N.E.2d 452 applying the same rule.-
Newton claims there was no evidence to support this instruction. The tendered instruction is a statement of the general rule. The defendant has the burden of proving contributory negligence. Goodhart v. Board of Commissioners of County of Parke (1989), Ind.App., 533 N.E.2d 605. In this case, there was no evidence that Eleanor knew of the impending danger or that she knew Alwin did not. Newton had the burden of proving that she had such knowledge but, it offered no evidence on this issue. In addition, even if it had offered such evidence, a question of fact would exist and the Handrows would be entitled to have the instruction given.
This instruction was not covered by other instructions. Newton claims it was covered by the court’s instruction Nos. 16 and 17 which informed the jury it was to consider Alwin’s and Eleanor’s claims separately. However, the jury was given no instruction on which it could base its determination of Eleanor’s negligence, if any. This lack of instruction coupled with the verdict form which failed to separate the plaintiffs as to percentage of fault permitted an inference that Alwin’s negligence could be imputed to Eleanor.
The Handrows’ tendered instruction No. 36 read as follows:
You are instructed that where an occupant of a vehicle has no control or authority over the driver, the contributory negligence of the driver cannot be imputed to the occupant. Accordingly, the contributory negligence of the driver of an automobile or other motor vehicle may not be imputed to an occupant where such occupant exercises no control over the driver, as where the occupant is a gratuitous passenger or guest in the vehicle.
This is also a correct statement of the law. In Indiana State Highway Commission v. Speidel (1979), Ind.App., 181 Ind.App. 448, 392 N.E.2d 1172, 1178, this court held:
Under Indiana law, the contributory negligence of a driver cannot be imputed to a passenger if the passenger is passive, exercising no control over the driver, Leuck v. Goetz (1972), 151 Ind.App. 528, 280 N.E.2d 847; New York Central R.R. Co. v. Sarich (1962), 133 Ind.App. 516, 180 N.E.2d 388; or when the driver and passenger are not shown to be engaged in a joint enterprise. Beem v. Steel (1967), 140 Ind.App. 512, 224 N.E.2d 61; Baltimore & O.R. Co. v. Patrick (1960), 131 Ind.App. 105, 166 N.E.2d 654; Vance v. Wells (1959), 129 Ind.App. 659, 159 N.E.2d 586.
See also, Goodhart, supra; Lueck v. Goetz (1972), Ind.App., 151 Ind.App. 528, 280 N.E.2d 847. Newton also argues that this instruction was not supported by the evidence because there was no evidence that Eleanor was a passive passenger. Conversely, there was no evidence that she was not. The Handrows cannot be expected to prove a negative. In addition, Eleanor testified that she had no control over her husband’s driving. In the absence of evidence that she had a right to control his driving, she was entitled to the instruction.
Newton, again, claims this instruction was covered by instructions Nos. 16 and 17 which read:
The rights of Alwin Handrow and Eleanor I. Handrow, the Plaintiffs in this cause, are separate and distinct. You will treat their claims as if they were two separate lawsuits. The instructions given you govern the case of each plaintiff so far as applicable to him or her.
*859In the event you find that any plaintiff is entitled to recover you will assess the damages of each separately and return a verdict in a separate amount for each.
The majority agreed with Newton’s argument; however, I disagree. Instruction No. 17 concerns damages not negligence. Instruction No. 16, while informing the jury that it should consider the Handrows’ claims separately, gives the jury no basis for doing so. In addition, when considered in conjunction with the verdict form, which did not separate the percentage of fault of the Handrows, this instruction is, at best, confusing, and, at worst, meaningless.
Finally, Eleanor was prejudiced by the refusal to give the tendered instructions. The jury was not informed that Alwin’s negligence could not be imputed to her and may have assumed that it was proper to do so.
The' majority concludes the Handrows have waived this issue by failing to “tender a verdict form designed to alleviate the alleged problems with the imputation of negligence to Eleanor”, and by failing to object to the form of the verdict returned by the jury. I disagree. In Wolff v. Slusher (1974), 161 Ind.App. 182, 190-91, 314 N.E.2d 758, 763, this court explained:
The appellants neither objected to the proposed verdict forms nor objected to the verdicts returned prior to the discharge of the jury. Although such failure may constitute waiver of the error alleged, the fundamental responsibility to instruct the jury cannot be ignored. It is essential that the jury understand the issues before them in order that they may return a proper verdict.
Here, the jury was given one verdict form, which read in pertinent part:
We, the Jury, find the fault in this matter to be attributed as follows:
Plaintiffs _
Defendant _
Nonparty _
TOTAL MUST = 100%
If the fault of Plaintiffs is greater than 50% enter the following verdict:
We, the Jury, find for Defendant.
DATE: _ FOREMAN: _
If the fault of Plaintiffs is not greater than 50% THEN you must determine the total amount of damages each Plaintiff is entitled to recover, without regard to fault:
Damages of ALWIN HANDROW Damages of ELEANOR I. HANDROW
$- $-
Multiply by ) Multiply by )
% attributed ) % attributed )
to defendant ) X__ to defendant ) X_
expressed as ) expressed as )
a decimal ) a decimal )
Amount due Alwin Handrow from Amount due Eleanor I. Handrow from Defendant Defendant
Without the Handrows’ tendered instructions Nos. 35 and 36, the jury would have had no basis on which to separate Alwin’s negligence from Eleanor’s negligence. Therefore, tendering a different verdict form would have been futile.
Finally, IND.CODE § 34-4-33-6 provides:
The court shall furnish to the jury forms of verdicts that require the disclosure of:
(1) the percentage of fault charged against each party; and
(2) the calculations made by the jury to arrive at their final verdict.
(Emphasis added). The statute places the responsibility for furnishing correct verdict forms upon the court. Here, Eleanor and *860Alwin were both parties, but the court failed to furnish a verdict form which required the disclosure of the percentage of fault attributed to each of them. This error coupled with the trial court’s refusal to give the Handrows’ tendered instructions nos. 35 and 36, results in a verdict which may have been based on the jury’s misconception of the law.
Although it appears, at first glance, that only Eleanor was prejudiced by the trial court’s error, if we were to reverse only as to Eleanor, we would be left with problems concerning the status of Alwin upon retrial. He might be considered a non-party defendant under I.C. § 34-4-33-10. However, such status would probably result in conflicting verdicts as to Alwin’s negligence and would raise a question of res judicata. Therefore, I would reverse and remand for new trial as to both Alwin and Eleanor.
. The Handrows’ brief refers to instructions Nos. 34 and 35, however, the record reveals the instructions were Nos. 35 and 36.