¶1dissenting:
¶2I would hold that the giving of instructions 17 and 23 constitutes reversible error entitling plaintiffs to a new trial.
¶3The majority correctly hold that the giving of each of these instructions is error. I part with the majority in holding these errors harmless, however. In my view the errors affect the substantial rights of the plaintiffs and cannot qualify as harmless errors. Rule 14, M.R.App.Civ.P.
¶4Instruction 17 flatly and unequivocally told the jury that failure of either plaintiff to locate or recognize the dangerous condition is contributory negligence. In my opinion the omission of the reasonable man standard is not cured by Instruction 10 defining negligence in terms of this test. The two instructions are contradictory in my judgment. Who can say with reasonable certainty which instruction the jury followed in arriving at its verdict?
¶5But the fundamental error was the giving of instruction 23. As stated by the majority, this instruction asked the jury, by employing agency principles, to impute the acts of Transamerica to plaintiffs. In this way contributory negligence could be imputed to plaintiffs because Transamerica had ordered an inspection of the Mint Bar premises which revealed the wiring was in good condition. The majority hold the error harmless because of supposed defects in plaintiffs’ objection to the instruction at the trial and because the same result would be reached if the case were tried again.
¶6Plaintiffs did object to the instruction at the trial on valid grounds that should have been sustained, specifically that the evidence did not support giving the instruction. The majority hold the evidence is clearly insufficient as a matter of law to warrant the giving of this instruction. I find no basis for requiring the plaintiffs to provide the trial court with an instruction that properly covers the situation as held by the majority. This was defendant’s instruction and the responsibility was on the defendant to offer an instruc*521tion correctly stating the law. More importantly, how could plaintiffs or anyone else offer a correct instruction on imputed negligence arising from an agency relationship where the evidence was insufficient to establish an agency?
¶7Finally to justify the giving of an erroneous instruction on the ground that if the case was tried again, the same result would be reached requires a clairvoyance possessed by few appellate judges. In my view, predicting the result on retrial is pure speculation.
¶8Here the error cannot be harmless. A verdict for the defendant could have been reached by imputing the negligence of Transamerica to the plaintiffs. The substantial rights of the plaintiffs were thus compromised by the erroneous jury instruction defeating the harmless error test in Rule 14, M.R.App.Civ.P.