The opinion
Baird, Presiding Judge,
dissenting.
Though the evidence would support a finding of simple negligence, it would not support a finding of any greater degree of culpability on the part of the defendant. Since there would be no liability to a trespasser for simple negligence, it becomes important to determine whether Natasha was a trespasser. There was evidence in the case that she had been on the public sidewalk just before she was hit, and there was evidence that she was subsequently found partly on the sidewalk and partly in the driveway.
In a discussion between the trial judge and counsel, the following exchange took place:
“THE COURT: You keep saying she was on the sidewalk. I suppose that’s very disputed.
“MR. ZURZ: That’s disputed. Sure. That’s up for the jury to decide that, where she was.”
Having acknowledged that the matter was disputed, it was incumbent on the court to submit the matter to the jury. I would reverse.