The opinion
Wright, J.,
dissenting. I am certain that it will come as a great surprise to appellees that this court “* * * is not directly attacking the judgment reached by the jury. * * *” Although appellants do not argue that the trial court erred in its failure to instruct the jury on comparative negligence, a majority of this court sua sponte raises this issue and uses it as the sole basis to reverse both lower courts. To rule that the failure by the trial court to honor appellees’ request for a charge on comparative negligence was reversible error is amazing given the fact that this is an appeal by the appellants. This issue was not assigned as error in the court of appeals or presented as a proposition of law or advanced in this court, and appellees have not filed a cross-appeal with this court. Therefore, the issue is simply not before us.
I would stress that the comparative negligence charge, if given, would have benefited defendants-appellees. It is puzzling indeed to find that the trial court’s failure to charge the jury on comparative negligence has somehow led to a new trial for appellants. The more one tries to explain this extraordinary result the less another can understand it.
Accordingly, I dissent.
Holmes, J., concurs in the foregoing dissenting opinion.