I respectfully dissent.
A close review of the record in light of governing principles inexorably warrants the conclusion that the failure to grant a new trial on the grounds of legal errors constituted a prejudicial abuse of discretion requiring reversal. Against an evidentiary background strongly probative of respondent’s actionable fault, the manifest instructional and procedural errors loom weighty in support of a determination that a miscarriage of justice has resulted.
While arguably it might appear unreasonable to hold the trial court accountable for its failure to anticipate doctrinal development of comparative negligence principles confirming statutory exclusion of liability apportionment to a good-faith settling cotortfeasor (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 604 [146 Cal.Rptr. 182, 578 P.2d 899]; Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 235-236 [132 Cal.Rptr. 843]), no reasons existed justifying the *447perpetration of the predictably harmful effect of such clearly erroneous instructions calculated to confuse and mislead the jury. The injection of such an illusory issue into an otherwise uncomplicated negligence action, grounded upon established right-of-way rules, by an injured claimant indisputably innocent of any participatory fault, could only have misled and distracted the jury from its principal duty to determine whether—in view of the prima facie violations of the relevant Vehicle Code sections—respondent, and respondent alone, had acted reasonably. (See Evid. Code, § 669; Alarid v. Vanier (1958) 50 Cal.2d 617, 624 [327 P.2d 897]; Lucas v. Southern Pacific Co. (1971) 19 Cal.App.3d 124, 140-141 [96 Cal.Rptr. 356].)
Moreover, the trial court’s inexplicable authorization of commencement of jury deliberations, notwithstanding the temporary absence of a juror, seriously undermined both parties’ constitutional right to a jury trial. (Cal. Const., art. I, § 16.) As the majority candidly recognizes, the record sheds no light as to when and at what stage of the deliberations the absent juror returned to fulfill his duties. Our highest state court has recently declared (in the context of a substituted alternate juror): “We agree with plaintiff that the principles set forth in Collins apply to civil as well as criminal cases. The right to a jury trial in civil cases is also guaranteed by article I, section 16 of the California Constitution, and the provisions of the statute, governing the substitution of jurors in civil cases (Code Civ. Proc., § 605) are the same as the ones governing criminal cases (Pen. Code, § 1089). The same considerations require that each juror engage in all of the jury’s deliberations in both criminal and civil cases. The requirement that at least nine persons reach a verdict is not met unless those nine reach their consensus through deliberations which are the common experience of all of them. [Fn. omitted.]” (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578, 584 [153 Cal.Rptr. 213, 591 P.2d 503]; italics added.)
Clearly, a jury verdict which is the likely product of deliberations involving less than the full panel membership cannot represent their combined common experiences. Thus, under the teachings of Griesel, the failure of the trial court to advise the full panel to disregard any past deliberations and to begin deliberations de novo upon Mr. Pottinger’s return constituted error. (Cf. Griesel v. Dart Industries, Inc., supra, 23 Cal.3d at p. 585.)*
The majority’s reliance on the consensual procedure which was followed cannot cure the error. The right to a civil jury trial as constitutionally guaranteed may be *448waived affirmatively only in the manner prescribed by statute. (Cal. Const., art. I, § 16; Turlock Golf etc. Club v. Superior Court (1966) 240 Cal.App.2d 693, 699 [50 Cal.Rptr. 70].) No waiver is demonstrated herein. Nor can counsel’s consent to a juror’s temporary [medical] absence excuse compliance with the statutory method of waiver or otherwise sanction incomplete jury deliberations.