¶1dissenting. I believe that there is enough uncertainty in how the jury reached its final verdict to justify remanding the case for a new trial. In the discussions over Interrogatory No. 4, the trial judge instructed the jury that its initial completion of the interrogatory was improper under our law, being a quotient verdict. It is conceded that this was an error on his part. While nine jurors had not yet agreed on Interrogatory No. 4, it is evident that the interrogatory was not improper and that the jury had filled in the percentages of fault on the part of Randall Thorn and John Hunt. What these percentages were is not revealed, as they were later obliterated by the jury, but the jury was told by the judge that its treatment of the interrogatory was “forbidden.” They were told to return to the jury room with the instruction that their verdict should be the verdict of all the jurors, but “not your original verdict.”
¶2The majority reasons that the appellant was not prejudiced by this development. But the answer to that lies in the interrogatory itself, as the original completion shows that four of the jurors had determined that Randall Thorn’s negligence was equal to the negligence of John Hunt and in that posture the plaintiff could not have recovered any amount. Thus, the jury was erroneously instructed that they must undo what they have done and any verdict returned thereafter is unreliable.
¶3The court’s instruction to the jury at this stage of the proceedings, i.e., after deliberations have begun, are the most sensitive stage of the trial process and when those instructions are material and admittedly erroneous, a new trial should be ordered.