¶1dissenting.
¶2The majority has reversed the judgment of the district court and remanded the cause for a new trial, finding plain error in the court’s failure to give the proper jury instruction under Neb. Rev. Stat. § 25-21,185.09 (Reissue 1995). I respectfully dissent.
¶3Kevin D. Russell sustained injuries while a passenger in Brant Strieker’s truck when Strieker and Lee Swires engaged in a speed contest. The jury found in favor of Russell and against Strieker and Swires. The jury apportioned the negligence among Russell (36 percent), Strieker (47 percent), and Swires (17 percent). Russell was awarded $17,330, which represented 64 percent of the total award of $27,077.
¶4Although Russell did not object to the jury instructions as given, he now asserts that the district court failed to properly instruct the jury with respect to the effect of its allocation of negligence as required by § 25-21,185.09.
¶5*865We have previously held that it is prejudicial error for the trial court to not properly instruct a jury on the effects of its allocation of negligence in accordance with § 25-21,185.09. See Wheeler v. Bagley, 254 Neb. 232, 575 N.W.2d 616 (1998). In Wheeler, the jury found the plaintiff 49 percent negligent and the defendant 51 percent negligent and valued the plaintiff’s damages at $40,000. Because we were unable to determine whether the jury had apportioned this amount between the plaintiff and the defendant, we reversed the judgment and remanded the cause for a new trial.
¶6In Pleiss v. Barnes, 260 Neb. 770, 619 N.W.2d 825 (2000), the trial court denied the plaintiff’s request for a Wheeler-type jury instruction. On appeal, the defendant argued that the plaintiff was not prejudiced because the jury did not reach the issue of contributory negligence, since it found in favor of the defendant. As in Wheeler, it was not apparent to this court that the jury had ever considered the possibility of apportioning the negligence between the parties. Thus, we reversed the judgment and remanded the cause for a new trial.
¶7Here, the result would not have been any different had the jury been instructed in the language of § 25-21,185.09. The jury determined the total amount of the award to be $27,077. The jury then apportioned contributory negligence to Russell and awarded him $17,330.
¶8The majority concludes that the district court’s error is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process. In my opinion, since the jury did what it would have been instructed to do had the district court given an instruction on the allocation of negligence, there is no plain error. The jury’s verdict shows that the jury allocated the negligence among the parties.
¶9Although the district court erred in not giving an instruction on the allocation of negligence, there is no prejudice to Russell. I would affirm.