(dissenting).
I respectfully dissent from division II and the result. The majority reverses the trial court for giving instruction 14 on two grounds. The first ground was not adequately presented or argued and was therefore not preserved. The second ground is based upon what I believe to be the application of a faulty rule of law.
*106I. The instruction is first disapproved by the majority for its failure to square the conduct it requires of decedent with the reasonably prudent man standard. The majority sees this failure as telling “the jury a warning by a horn was adequate as a matter of law * * The instruction given would have been improved by language which would have related decedent’s conduct to the reasonably prudent man standard. But this deficiency was never urged by plaintiff. The record made on the subject at the time exceptions were taken to the instructions was as follows:
“MR. SMITH: Plaintiff excepts to — • Plaintiff objects to Instruction Number 14 for the reason it is inconsistent with Instruction 12, in that it would lead the jury to believe that the honking of the horn was adequate notice to be given by the defendant; and that by giving such instruction the Judge is in effect taking this jury question away from the jury and indicating that it was adequate; and that therefore the duty follows the—
“THE COURT: (Interrupting) Isn’t that the case in every situation where y'ou have the spec of negligence? They are supposed to take them all into consideration with each other ?
“MR. SMITH: It’s the contention of the plaintiff—
“THE COURT: (Interrupting) We give you, in the plaintiff’s case, we give you this one on the duty of — this is your spec on giving the proper — giving inadequate warning, either in person or by flagman or traffic director. Now we get around to giving defendant’s case.
“MR. SMITH: I didn’t get to complete my objection. Maybe I don’t have to, but it’s my contention that that instruction should be amended to the direction of finding of proximate cause by the jury; and as such it is improper.”
Plaintiff’s opposition to the instruction was limited to its failure to interweave. the plaintiff’s claims of defendant’s negligence and defendant’s claims of decedent’s contributory negligence. The complaint did not reach the ground that it failed to encompass the reasonably prudent man standard. This is illustrated by the instruction requested by plaintiff as an alternative:
“Mr. Horton for a further defense to the plaintiff’s claim charges that Mr. Jorgen-sen was negligent in that he did not heed Mr. Horton’s warning of honking the horn as the truck was moved back to the paver.
“You are instructed that it was the duty of Mr. Jorgensen to use his sense of hearing, as well as all his senses, to become aware of the lawful use of the driveway to the paver by others.
“If you find under the testimony in the case that Mr. Horton honked the horn on the truck before backing into the driveway, that Mr. Horton need have given Mr. Jor-gensen no warning of his backing up other than honking, and that Mr. Jorgensen did not heed such warning; and
“If you find that he heard such warning or, under the circumstances of this case, that he should have heard it, then Mr. Jor-gensen would be negligent.
“If you further find that such failure on the part of Mr. Jorgensen was a proximate cause of his death, the plaintiff cannot recover and your verdict must be for the defendant.” (Italics added)
The italicized portion of the above instruction indicates the only change requested by plaintiff. The first failure upon which the majority reverses the trial court was not preserved. If the language was inadequate in the instruction given, the same language was inadequate in the requested instruction.
II. I disagree with the rule adopted by the majority which compels an interweaving of adverse parties’ opposing claims of negligence. The full import of such a rule *107will become more apparent in some future case involving a suit and counterclaim. Even in the present situation the plaintiff should not be able, by reason of her claims as to defendant’s conduct, to lower the standards of care required of her decedent.
Defendant argues “(o)nly if defendant’s honking comprised adequate warning to decedent (i. e. a flagman was not necessary) could decedent be guilty of contributory negligence for not heeding horn blasts * * * »
I do not agree. The argument misapprehends the defendant’s affirmative defense. Defendant does not claim he exercised due care in sounding a horn. He claims only that the decedent was negligent in failing to heed it. Plaintiff does not have the right to shape or to limit the scope of the affirmative defense by the nature and scope of his claim of defendant’s negligence. He has no right, in law or logic, to require these conflicting claims to be either merged or to be mutually exclusive, even where they both happen by chance to relate to claims of warnings given or not given.
“If the person who is likely to be harmed by the act knows of the actor’s intention to act, by his own observation or through a warning given by the actor, but nevertheless unreasonably insists upon his right or privilege to go upon or remain in the danger zone in the face of the risk manifestly involved in so doing, he may be charged with contributory negligence so as to preclude him from recovery (see Chapter XVII), * * *.
“This does not mean, however, that the actor’s conduct is not negligent, but only that it does not result in liability because there is an available defense.” Restatement (2d) of Torts, section 301, comment a, volume 2 at page 78.
The case should be affirmed.
LeGRAND, J., joins in this dissent.